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Criminal Law Guidebook: New South Wales, Victoria and South Australia (Oxford Law Guidebook) [2 ed.]
 0195593987, 9780195593983

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CRIMINAL LAW GUIDEBOOK NEW SOUTH WALES, VICTORIA AND SOUTH AUSTRALIA

Second Edition

John Anderson

CRIMINAL LAW GUIDEBOOK

NEW SOUTH WALES, VICTORIA AND SOUTH AUSTRALIA

Other books in the Oxford Law Guidebook series Administrative Law, Francisco Esparraga and Ian Ellis-Jones Business Law, Charles YC Chew Business Organisations Law, Michael Adams and Marina Nehme Constitutional Law, Bede Harris Corporations Law, David Wishart Criminal Law: Queensland and Western Australia, Andrew Hemming Equity and Trusts, Christopher Brien Property Law, Chris Davies Uniform Evidence Law, John Anderson and Anthony Hopkins

CRIMINAL LAW GUIDEBOOK

NEW SOUTH WALES, ­VICTORIA AND SOUTH AUSTRALIA

Second Edition

John Anderson with Mary Heath

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in Australia by Oxford University Press 253 Normanby Road, South Melbourne, Victoria 3205, Australia © John Anderson with Mary Heath 2016 The moral rights of the authors have been asserted. First edition published 2010 Second edition published 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. National Library of Australia Cataloguing-in-Publication data Creator: Anderson, John (John Lance), 1962– author. Title: Criminal law guidebook : New South Wales, Victoria and South Australia / John Anderson, Mary Heath. Edition: Second edition. ISBN: 9780195593983 (paperback) Notes: Includes index. Subjects: Criminal law–Australia. Other Creators/Contributors: Heath, Mary, author. Dewey Number: 345.94 Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email: [email protected] Edited by Joy Window Text design by Aisling Gallagher Typeset by diacriTech, Chennai, India Proofread by Roz Edmond Indexed by Russell Brooks Printed by Sheck Wah Tong Printing Press Ltd Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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CONTENTS Preface viii Acknowledgments ix How to Answer Questions xi

PART ONE CRIMINAL LAW AND PROCEDURE FRAMEWORK

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Chapter 1: What is Crime and Criminal Law? 3 Introduction 3 What is criminal law? 4 6 Brief perspectives on the meaning of ‘crime’ Sources of Australian criminal law 9 The parties to a criminal case 11 12 Criminal jurisdiction and ­geographical ­nexus The two branches of the criminal law 13 14 The Model Criminal Code Chapter 2: Determining Criminal Responsibility and 20 Basic Aspects of Proof Introduction 20 The conduct element (actus reus) 21 The mental element (mens rea) 23 29 Coincidence of actus reus and mens rea Strict liability—honest and reasonable ­mistake of fact 31 Absolute liability 33 34 Who can be criminally responsible? The burden of proof 35 36 Basic aspects of proof and fact-finding Basic sources of proof 38 44 Chapter 3: The Criminal Justice System and ­Criminal Procedure Introduction 44 45 The court system and types of ­criminal ­offences The roles of the police, prosecution and ­defence 50 Pre-trial procedures 52 Summary proceedings in Magistrates’ Courts 60 Trial procedure in intermediate and ­Supreme Courts 64 Appeals 65

PART TWO PUBLIC ORDER

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Chapter 4: Public Order Offences 77 Introduction 77 The concept of ‘public place’ 79 Contemporary policing powers 80

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Contents

Offensiveness 82 Damage to property 87 89 Public assemblies Riot and affray 91 Prostitution/sex work 92

PART THREE OFFENCES AGAINST THE PERSON

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Chapter 5: Assault and Aggravated Assault 103 Introduction 103 The law of assault 104 The conduct element (actus reus) of assault 105 106 The issue of ‘consent’ to assault and ­sporting contests The mental element (mens rea) of assault 109 110 Legislative provisions for assault Defences to assault 111 Aggravated assaults—additional elements/separate offences 112 118 Stalking and intimidation Domestic violence and restraining orders 119 128 Chapter 6: Sexual Offences Introduction 128 129 The core sexual assault offence The conduct elements (actus reus) of sexual assault 130 The mental element (mens rea) of sexual assault 131 135 Aggravated forms of sexual assault Other sexual offences 138 Procedural matters in the prosecution and hearing of   sexual offences 143 Chapter 7: Murder and Manslaughter 153 Introduction 153 Murder 155 156 The conduct elements (actus reus) of murder The mental elements (mens rea) of murder 160 Constructive murder 162 Manslaughter 163 ‘Assault causing death’ offences and related developments 170 Death and serious injury caused by motor vehicles 171

PART FOUR DISHONESTY AND DRUGS

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Chapter 8: Property Offences 185 Introduction 185 The offence of ‘larceny’ or ‘theft’ 186

Contents

The conduct elements (actus reus) of larceny and theft 188 The mental elements (mens rea) of larceny and theft 193 Other dishonest property offences 197 Robbery 202 Burglary or breaking and entering 204 Chapter 9: Drugs Offences 214 Introduction 214 The mental element (mens rea) of drugs ­offences 215 217 Possession of prohibited drugs Supply and trafficking 220 227 Cultivation and manufacture of drugs Commonwealth legislation 230

PART FIVE CRIMINAL LAW FRAMEWORK EXTENDED 243 Chapter 10: Extending Criminal Responsibility 245 Introduction 245 Attempt 246 Conspiracy 253 Complicity 259 Chapter 11: Defences 281 Introduction 281 Self-defence 282 Provocation 289 Duress and necessity 299 305 Fitness to be tried The mental state defences 307

PART SIX SENTENCING OFFENDERS

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Chapter 12: Sentencing and Punishment 329 Introduction 329 Purposes of sentencing and punishment 330 Common law sentencing principles 333 The sentencing process 336 Relevant factors in sentencing 337 Judicial approaches to sentencing 338 Sentencing and punishment options 340 349 Victims’ rights, support and compensation Table of Cases 361 Table of Statutes 382 Index 396

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PREFACE The purpose of this book is twofold. First, it is designed to synthesise the enormous amount of detail in criminal law and criminal procedure for the Australian ‘common law’ jurisdictions of New South Wales, Victoria and South Australia into accessible summary statements of the key concepts and principles. This is done by incorporating relevant statutory provisions and leading case examples into a concise and comprehensive commentary on each topic area. Tables and diagrams are used to condense and summarise essential information, together with active learning questions to ensure adequate knowledge and understanding of the key materials. In this way, the book is a very useful complement to the leading criminal law and procedure textbooks, which provide much more detailed consideration of the various topic areas and policy issues. Second, having gained an adequate understanding of the doctrinal concepts of ­criminal law and procedure, learners are presented with typical problems related to ­specific topic areas to engage them in analysis and the development of problem-solving skills by applying their knowledge to situations likely to be encountered in legal practice. The problems have been designed to encourage learners to think deeply about the issues raised, and to attempt to analyse these issues in writing, before visiting Oxford University Press online to see the suggested solutions to the problems. The book is primarily designed for students studying criminal law and procedure in the three common law jurisdictions. It may also be a useful resource for legal practitioners, paralegals and other criminal justice professionals who are seeking an immediately comprehensible summary of criminal law and procedure in those jurisdictions. In every sense of the word, it is a ‘guidebook’ to inform, direct and develop skills in problem solving for those studying, working in or simply having an interest in criminal law and procedure. The law stated is current as at 1 April 2016.

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ACKNOWLEDGMENTS Foremost, I want to acknowledge the assistance and encouragement given by Associate Professor Mary Heath from Flinders University. For this second edition, Mary again carefully read each draft chapter and provided insightful feedback and suggestions—not only in relation to the South Australian content, but also generally. This has been a great motivation for ensuring accuracy as well as keeping my topic coverage in check consistently with the guidebook rationale. Next, I must express my gratitude to Joseph Wenta, my research assistant on this project. Joe provided comprehensive and invaluable assistance to me in gathering and updating the materials for most of the chapters in this second edition. This assistance was funded by a publication award and other research funds from the Faculty of Business and Law at the University of Newcastle. Also, sincere thanks to my former and current criminal law colleagues in the Newcastle Law School, including Emeritus Professor Neil Rees, Robert Cavanagh, Tyrone Kirchengast, Greg Carne, Nicola Ross, Joseph Wenta and Brendon Murphy. In one way or another they have all contributed to this book through their generous sharing of materials and problem questions or reading and commenting on draft chapters. Further, there have been a number of anonymous reviewers of the original book proposal and of draft chapter material, to whom I am indebted for their useful suggestions as to content and style. My students, past and present, have been a great inspiration for this book in helping me to focus more clearly on the key criminal law and procedural concepts they have identified as most important in their learning of the extensive and complex material this subject area comprises. Also, my students have been important in assisting me to refine my explanation of legal problem-solving methodology and identifying the most useful techniques for developing this very important skill. Thanks also to all at Oxford University Press who initially encouraged me to write the second edition and then steered it through the demanding publication process, including Michelle Head, Shari Serjeant, Tiffany Bridger, Alex Chambers and Joy Window. Finally but most importantly, I owe a significant debt of gratitude to my wife, Melissa, who again has generously allowed me the time to work on the second edition of this book and earnestly supported me in this endeavour. John Anderson Newcastle May 2016

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Acknowledgments

The authors and the publisher also wish to thank the following copyright holders for reproduction of their material: Attorney-General for the state of South Australia and the South Australian Courts Administration Authority for Supreme Court of South Australia extract; Bloomsbury Publishing Plc for extract from Positive Obligations in Criminal Law by Andrew Ashworth, 2013, Hart Publishing, an imprint of Bloomsbury Publishing Plc.; Lexis Nexis for the extract from the All England Reports and the extract from Francine Feld, Andrew Hemming and Thalia Anthony, Criminal Procedure in Australia (2015); State of Victoria for legislation extracts, Australian Copyright in all legislation of the Parliament of the State of Victoria, Australia, is owned by the Crown in right of the State of Victoria, Australia. DISCLAIMER: This product or service contains an unofficial version of the legislation of the Parliament of State of Victoria. The State of Victoria accepts no responsibility for the accuracy and completeness of any legislation contained in this product or provided through this service; The Council for Law Reporting for New South Wales for New South Wales Law Report (NSWLR) case extracts; Thomson Reuters for case extracts from Australian Criminal Law Reports, Commonwealth Law Reports, Australian Law Journal Reports, also for extract from Mark Israel, ‘What is Crime?’ in Andrew Goldsmith, Mark Israel and Kathleen Daly (eds), Crime and Justice: A Guide to Criminology (3rd edn, 2006). Reproduced with permission of Thomson Reuters (Professional) Australia Limited, www.thomsonreuters.com.au. Every effort has been made to trace the original source of copyright material contained in this book. The publisher will be pleased to hear from copyright holders to rectify any errors or omissions.

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HOW TO ANSWER QUESTIONS Introduction At law school, learning the criminal law in your jurisdiction is not simply a matter of absorbing information about the relevant legislation, case law and legal principles. A very important learning and assessment tool used in law schools is that of solving legal problems. For most law students, this is a new challenge and you need to work on developing proficiency in your problem-solving technique from an early stage of your studies. To reflect the significance of problem-solving for law students, we have given you problem questions to test your knowledge and understanding of aspects of the criminal law in each chapter apart from the first two chapters of this book.

Legal problem-solving Problem-solving is an important daily task for many people, including lawyers. One of the most useful approaches to legal problem-solving has been given the acronym ILAC. Other acronyms have been given to similar approaches.1 ILAC has a number of parts: Issues from facts, Law, Application of law to facts, Conclusion. This problem-solving model accords with the fundamental skills that are expected of practising lawyers. They are expected to be able to (1) identify any issues raised after discovering the material facts about a particular incident or event; (2) research and elaborate the applicable law relevant to the issues raised; (3) apply the relevant law to the facts and construct alternative arguments that may lead to a resolution of the issues raised; and (4) come to a conclusion about the most likely solution to the issues initially identified from the facts. Each part of the problem-solving model involves a reasoning process that can be explained as follows: • Issues from facts—problem questions at law school will be similar to how a client will present their problem to a lawyer in practice. It would be unrealistic, however, to expect assignment and examination questions to contain all relevant facts. You must carefully read the facts you are given in the problem and order them so that you can create a mental picture of the events. Once you have ascertained the material facts, identify the legal issues that arise from those facts. For example, in a criminal case one issue may be whether A did something that caused the death of B. • Law—next you have to research the relevant law—statutory and common law—to ascertain what law applies to the issues arising from the facts. When stating the relevant law, you need to cite the primary sources (statutory provisions or cases) as authority. When extracting legal principles from common law cases, ­remember to distinguish clearly the ratio of a case from obiter dicta. When identifying ­precedents from the common law, only state the legal principle. It is not necessary

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to restate the facts of decided cases unless they are directly on point or clearly distinguishable from the material facts of the problem. What you are usually doing is identifying established legal principles for potential application to a new set of facts raised by the problem. Continuing the above example, you will need to identify the statutory provisions relating to homicide in your jurisdiction and the legal principles from the common law relating to causation, as the law relevant to whether A caused the death of B. • Application of law to facts—you now come to the most important part of legal analysis. Here alternative arguments must be considered to determine how the relevant law might apply to the issues raised from the facts of the given ­problem. You also need to make clear links between the law and the facts to support ­arguments raised as to potential resolution of the problem and to discount ­counter-arguments. If facts are to be inferred, then do this logically, realistically and sensibly, as you are trying to persuade the reader that your analysis is valid and the strongest arguments are presented. • Conclusion—depending on the strength of the alternative arguments you have made in your application of the law to the facts of the problem, you should ­conclude with the strongest argument you have identified. This is your final ­opportunity to persuade the reader that your interpretation is correct, so ensure that you have been comprehensive, accurate and logical in reaching your conclusion. Due to uncertainties in the law or in the application of established legal principles to a unique factual situation, it may be that you can draw only a tentative conclusion. As long as your analysis of the law and facts and the unfolding of your argument are sound, this will be sufficient. Finally, you must write your solution to the problem. Its style will depend on the specific question asked, and the nature of the learning activity or assessment task that you are completing. Often you will be asked to ‘advise’ as this closely relates to what you will experience in legal practice when answering questions of law raised through an interview with a client. Preparing an advice involves relating the law to the facts provided by the client and suggesting a course of action to solve the client’s problem. These solutions are typically presented as a written discussion in an essay format, or in a style similar to that used in legal practice (such as a letter of advice). At law school, even though you might be asked to provide an advice to a client or to a senior solicitor in your firm or organisation, your reader is a legal academic and so you must demonstrate a good depth of knowledge and understanding about all aspects of the relevant law. Other means of presenting written solutions to problems might also be used to demonstrate the application of the legal problem-solving model outlined above. One example, explained by Alex Steel and Dominic Fitzsimmons, is the ‘grid answer

How to Answer Questions

format’2 The grid answer format, as the name suggests, requires that the solution to a problem be presented in a grid or table (rather than being written out as a discussion in essay format). The grid or table in which your solution is presented largely corresponds with the steps in the legal problem-solving framework outlined above. The grid answer format will therefore help you to see how the different parts of the legal problem-solving model work (and how they fit together), encourage further development of your problem-solving skills, and help you to identify areas of substantive law for further review. The grid answer format is well-suited to new law students, and can help you in developing your legal problem-solving skills in criminal law and other subject areas. In designing legal problems for law students, there is a strong emphasis on developing the skills of argument and a persuasive technique. You are encouraged to consider the positives and negatives of a particular legal strategy by clearly stating the pertinent arguments and counter-arguments. In doing this, you are also encouraged to make your application of law to the facts ‘tight’,3 that is, as clear and concise as possible. Commencing in Chapter 3, there is one or more problem questions at the end of each chapter for you to attempt. A suggested solution for each question is available at Oxford University Press online . These solutions follow the ILAC approach to problem-solving and are designed to guide you as you develop your own problem-solving technique. The solutions to chapters 5 and 6 are set out in the ‘grid answer format’ referred to above in order to demonstrate how that method can assist in developing and refining problem-solving skills.4

Important references For further material relating to models of legal problem-solving, the following textbooks should be consulted by students: Michael Brogan and David Spencer, Becoming a Lawyer: Success at Law School (3rd edn, 2014), Chapter 5 ‘Legal Problem Solving’ 104–30. Mark Findlay, Criminal Law: Problems in Context (2nd edn, 2006), Chapter 3 ‘Solving Criminal Problems’ 60–78. Patrick Keyzer, Legal Problem Solving: A Guide for Law Students (2nd edn, 2003). Richard Krever, Mastering Law Studies & Law Exam Techniques (9th edn, 2016), Chapter 5 ‘Some Basic Rules’ 45–66 and Chapter 9 ‘Sample Examination Questions and Answers’ 160–170.

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Notes 1 See, for example, Patrick Keyzer, Legal Problem Solving: A Guide for Law Students (2nd edn, 2003) 5–6, where the acronym MIRAT, developed by Australian legal academic Professor Wade, is used. See also Michael Brogan and David Spencer, Becoming a Lawyer: Success at Law School (3rd edn, 2014) 110–21, who use ILAC because it ‘essentially follows the method adopted by judges when they write judgments’ (at 110); and Charles Chew, Business Law Guidebook (2nd edn, 2014) xi–xii, who calls it IPAC. See also Australian Learning and Teaching Council, Learning and Teaching Academic Standards Project: Bachelor of Laws: Learning and Teaching Academic Standards Statement (December 2010) 18. 2 Alex Steel and Dominic Fitzsimmons, ‘Answering Legal Problems in a Grid Format’ in Kathryn Coleman and Adele Flood (eds), Marking Time: Leading and Managing the Development of Assessment in Higher Education (Common Ground Publishing, 2013) 77–90. 3 See Keyzer, above n 1, 109 for a good example of what is meant by ‘tight’ application of law to the facts in the context of a criminal law problem. 4 A blank sample ‘problem-solving grid’ is also available at the Oxford University Press website for you to use in your problem-solving activities and developing your technique.

PART ONE

CRIMINAL LAW AND PROCEDURE FRAMEWORK

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CHAPTER 1

WHAT IS CRIME AND CRIMINAL LAW? COVERED IN THIS CHAPTER In this chapter, you will learn about: • the nature of criminal law • different perspectives on the meaning of ‘crime’ • the main sources of Australian criminal law • ‘code’ and ‘common law’ criminal jurisdictions in Australia • the parties to a criminal case • geographical nexus—what criminal laws apply and where they apply • criminal law’s two branches—substantive and procedural • the Model Criminal Code.

STATUTES TO REMEMBER Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Criminal Law Consolidation Act 1935 (SA) Criminal Code Act 1995 (Cth)

INTRODUCTION Welcome to the study of criminal law! It is, at times, confronting, but ultimately enlightening and fascinating in its relevance to everyday human activity. But, first, what is ‘criminal law’? The answer is inextricably linked to an understanding of the nature of ‘crime’ and why certain conduct is prohibited in different communities. At the outset, though, it is important for you to distinguish criminal law from criminology. Criminology involves the study of the causes, nature and prevalence of criminal behaviour. There is an overlap of a number of disciplines in criminology, including sociology, law, psychology, history and economics, which have all contributed to the development and application of theories to explain the phenomenon of crime. Criminal law is more difficult to define. Essentially, the criminal law involves state regulation of wrongs, proved through the criminal law process and resulting in punishment for individuals and groups who commit those wrongs. It is important to highlight the role of the state in criminal law. The state is a mixture of various

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institutions—the legislature, judiciary and executive as well as police and penal institutions—comprising both elected representatives and appointed individuals capable of generating and enforcing laws, rules and regulations affecting diverse areas of human life. This definition of criminal law, although useful in a general sense, is inadequate because it does not give a clear account of the specific content of the criminal law or of the types of activities that amount to punishable wrongs. But who said answering the first question you asked would be easy?

WHAT IS CRIMINAL LAW? Consider the following quote from novelist Henry Miller: The study of crime begins with the knowledge of oneself.1

Each one of us has intimate knowledge of ourselves as a human being and that knowledge is based on our individual lifestyle, interests, beliefs and world view. Therefore, one interpretation of Miller’s claim is simply that our knowledge about our own behaviour and standards (perhaps involving a moral dimension) is where it is useful to begin the study of crime and criminal law. In a sense we impose our own standards, gained from knowledge of ourselves, on conduct to assess whether or not we consider it wrongful, and thus possibly falling into the category of ‘criminal’. We have knowledge of our own character and can make some estimate of the dangers and temptations that life is likely to present to us—in this way we may begin to identify ‘criminal’ behaviour. That does not mean that all behaviour we individually identify as ‘criminal’ will be labelled that way in a legal sense, but this self-reflection does give us an initial framework for the study of criminal law and an awareness of our own preconceptions. There are also a number of other value sources, such as religious, cultural, family, social, economic and political sources, which operate upon individuals and the community in delineating ‘criminal’ behaviour. These sources contribute to the framework for informed consideration of the content and application of the criminal law. The reality is, however, that this self-generated framework based on individual and collective values is of limited utility, as certain standards of behaviour and a general sense of ‘right’ and ‘wrong’ are imposed upon us from powerful external sources. Most notably, the actions of the state in creating legislation and the decisions of courts represent the overarching sources of the criminal law. Ultimately, ‘criminal’ conduct is prescribed through the democratic parliamentary process and passed into laws, or emerges from the common law. These laws are enforced by executive institutions such as the police, who arrest alleged law-breakers. What follows is

CHAPTER 1: WHAT IS CRIME AND CRIMINAL LAW?

a court process presided over by the judiciary where it is determined whether an individual is guilty of criminal conduct. If guilt is established, that individual will be sentenced by a judicial officer and the punishment will be administered by an executive institution, such as corrective services. This process will take place regardless of the value system of the individual and their particular view of what is criminal. A classic legal dictionary definition of ‘criminal law’ is: The rules of statute and common law which direct that certain actions are punishable by the state.2

This definition may satisfy those seeking a basic understanding of criminal law, but as law students it is important for you to think more deeply and consider the central principles or values of the criminal law. Thinking deeply is challenging and underlines the difficulties of definition. Your efforts to better define and understand the criminal law will be assisted by the insightful contribution of Andrew Ashworth, Emeritus Vinerian Professor of English Law at the University of Oxford, who refers to a ‘principled core of criminal law’.3 Ashworth asserts that ‘any attempt to define the criminal law in terms of its content is destined to fail … [as criminal law is] … not the product of any principled enquiry or consistent application of certain criteria, but largely dependent on the fortunes of successive governments, on campaigns in the mass media, on the activities of various pressure groups and so forth’. 4 That is, the content of the criminal law is constantly changing and no principles can be discerned to direct or limit these changes; its content is increasingly determined by political expediency. Ashworth then, in a valiant attempt to save the criminal law from becoming a lost cause because of this uncertainty in definition and lack of boundaries, advocates a principled use of the criminal law by prescribing limits for the intervention of its coercive functions, particularly punishment of those persons who break the criminal law. This is the ‘principled core of the criminal law’, which contains four interlinked principles: (1) the principle that the criminal law should be used, and only used, to censure ­persons for substantial wrongdoing (2) the principle that criminal laws should be enforced with respect for equal treatment and proportionality (3) the principle that persons accused of substantial wrongdoing ought to be afforded the protections appropriate to those charged with criminal offences (4) the principle that maximum sentences and effective sentence levels should be proportionate to the seriousness of the wrongdoing.5 Ashworth emphasises that the core idea is that ‘if a particular wrong is thought serious enough to justify the possibility of a custodial sentence, that wrong should

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be treated as a crime, with fault required and proper procedural protections for defendants’.6 In relation to minor wrongs that have been made criminal offences ‘simply because the criminal courts offer themselves as a quick and cheap means of dealing with them’, Ashworth puts forward the solution of creating ‘a new category of “civil violation” or “administrative offence”, which would certainly be non-imprisonable and would normally attract a financial penalty; procedures would be simplified but would preserve minimum rights for defendants, such as access to a criminal court’. 7 Although somewhat idealistic in a time when we have seen an increasing number of ‘criminal’ offences created by governments without regard to the principled core of the criminal law, it is still important to keep Ashworth’s principles in mind in considering the framework of the criminal law, its changing content, the processes used to investigate alleged criminal behaviour and the sentencing of those who have been found to have committed criminal offences. Overall, while acknowledging the difficulties of definition, it is apparent that the contemporary criminal law can be described as a collection of state-enforced prohibitions and procedures that are informed and shaped by politically and socially constructed ideas of right and wrong that are concerned with human behaviour.

BRIEF PERSPECTIVES ON THE MEANING OF ‘CRIME’ Criminal law deals with wrongs labelled as crimes. In seeking to give meaning and substance to the word ‘crime’, consider the following six scenarios. From your present knowledge and life experience, has a crime been committed in each scenario? Why or why not? (1) While having lunch in a restaurant, a person (A) takes a gun out of their bag and shoots a person (B) quietly eating their meal at the next table. B is killed. (2) What if the facts in scenario 1 were changed so that A only took out the gun and shot and killed B after B had got up from his table and begun to walk towards A with a large carving knife in his raised hand? (3) An employee (C) of a uranium processing plant dies as a result of overexposure to radiation in their working environment. (4) A person (D) yells from the street in a loud voice directly at another person (E) sitting on the front deck of a house. In yelling at E, D repeatedly uses the expletives ‘fuck’ and ‘cunt’. (5) What if the facts in scenario 4 are changed so that E is inside the house? After ­being invited in, D enters the house and begins talking to E. During this conversation an argument develops between D and E. D then yells abuse at E, repeatedly using the expletives ‘fuck’ and ‘cunt’.

CHAPTER 1: WHAT IS CRIME AND CRIMINAL LAW?

(6) A person (F) is driving their car on a major national highway and after driving for an hour F falls asleep at the wheel. The car crosses to the incorrect side of the road and collides head-on with a car travelling in the opposite direction. F is not injured, but all occupants of the other car apart from its driver (G) are killed. G is seriously injured. The above scenarios are a few examples designed to illustrate some of the difficulties we will encounter in seeking an absolute, or even adequate, answer to the question, ‘What is crime?’ during our study of the criminal law. They should prompt you to consider and reflect upon your own understanding of what amounts to a crime and the various factors that may influence the construction of crime. This includes the ‘knowledge of oneself’ and common sense, as well as external sources of influence that shape the criminal law. These scenarios should have prompted you to think about what actually happened—that is, what was said and/ or done; how it happened; and the context in which it happened. In thinking about what was said and done it is important to consider the concepts of harm, morality and offensiveness. In considering how an incident happened, it is important to take account of the general social conscience and whether there are any justifications or excuses for the conduct involved in the incident or event. The ‘public’ or ‘private’ location of the happening is also an important factor in determining whether there has been a crime. Keeping this in mind and turning to particular perspectives on the meaning of crime, it is initially useful to consider strictly legal perspectives. Leading British criminal law scholar Professor Glanville Williams has stated that a crime is ‘a legal wrong that can be followed by criminal proceedings and which may result in punishment’.8 In a similar vein, ‘crime’ is defined as ‘an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine or imprisonment in special proceedings, normally instituted by officers in the service of the Crown’.9 These definitions of ‘crime’ focus on the legal process, and the liability of the individual to punishment, to distinguish crimes and the criminal law from torts and the civil law. They are legalistic definitions that give you a foundation for understanding what ‘crime’ is. However, they are not entirely adequate and it is arguable that a universally satisfactory definition is elusive. Other perspectives on crime may, however, promote deeper thought as to a more comprehensive definition. There are many other perspectives on the meaning of crime, including historical, social, moral and human rights. It is clear that history has gradually shaped our conceptions of crime. These conceptions can become entrenched and may be difficult to change even though social conditions have changed. The influences of history in the Australian context are particularly apparent in the legacies of being a

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colony of Britain. The colony received English law and imposed it on all Australians, including Indigenous peoples, ignoring the Indigenous laws preceding and coexisting alongside it. History and cultural influences provide some explanations for the content and construction of contemporary ‘crime’, but they cannot account for all of its features. For example, although murder, rape and theft have a long history of criminalisation, conduct amounting to adultery, homosexual acts between consenting adults and vagrancy have been decriminalised. Also, the prohibitions on the sale and use of certain drugs, and the misuse of electronic communications and computer data, are comparatively recent additions to the criminal law that cannot be explained by historical influences, particularly in relation to the use of drugs. Another perspective taken by legal commentators has been to focus on the characteristics of crime rather than historical influences on it. The concepts of harm and offensiveness, together with the ‘public/private distinction’, have been identified as providing a moral dimension to efforts to explain the criminalisation of certain behaviours. There is a significant amount of harmful conduct characterised as ‘crime’ whether it be to the person or to property. Crimes such as assault, arson, kidnapping and robbery are clearly harmful. ‘Harm’, however, is also a word that is difficult to define and it cannot be categorically applied to all conduct that is labelled as a crime. It is certainly arguable that there are ‘many events and incidents which cause serious harm [and which] are either not part of the criminal law or, if they could be dealt with by it, are either ignored or handled without resort to it’.10 Similarly, immorality and offensiveness underpin the criminalisation of certain forms of conduct, particularly sexual assaults, acts of indecency and public order offences; however, neither could be described as essential conditions for criminality.11 A human rights approach to the meaning of ‘crime’ is offered by Rob White, Fiona Haines and Nicole Asquith. They argue that ‘a crime occurs whenever a human right has been violated, regardless of the legality or otherwise of the action … [allowing for the inclusion of] … oppressive practices such as racism, sexism and classbased exploitation’.12 The human rights approach also acknowledges international dimensions of crime, and draws ‘attention [to] the concept of state crime … which is a substantial departure from conventional definitions of crime that focus on individual wrongdoing’.13 Although such a meaning broadens our conception of crime, it does not reflect the contemporary reality of the criminal law. While some human rights can be protected through legal mechanisms, ‘human rights are not enforceable in the same way as criminal law’.14 Further, the creation and adaptation of laws is clearly linked to ‘the political process of the legislature … the decision of the police to enforce [criminal laws] … and the reactions of members of the community—and in particular strong economic groups. In short, what we call crime is part of a larger process of social control’.15

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Perceptions are also shaped by the portrayal of crime through the media. This is increasingly so in a technological age where the electronic media provides instantaneous news and comment on events: The media are important not only in shaping our definitions of crime and crime ­control, but also in producing legal changes and reinforcing particular types of policing ­strategies … they make unusual events usual events in our lives.16

Accordingly, there is a complex range of forces operating in society that influences the labelling of conduct as a crime. In the study of criminal law, however, it is important to keep uppermost in our minds that no matter how harmful, morally reprehensible or dangerous certain conduct is, it is not a crime in any formal legal sense unless the relevant authorities of the state have made it one.

SOURCES OF AUSTRALIAN CRIMINAL LAW The original source of Australian criminal law arrived with the First Fleet in 1788 and was transplanted through the subsequent British settlement of the colony of New South Wales. The existing English criminal law was ‘received’ into the colony. William Blackstone’s Commentaries on the Laws of England17 stated the common law of England. The primary source of his statements of law was judicial interpretation of the law from case to case. This common law formed the basis of the criminal law in the colony and, at that time, there was limited parliamentary intervention. Indigenous Australians were regarded by the English settlers as ‘nomadic’, with no recognisable system of laws and society. Accordingly, there was no recognition of Aboriginal customary laws alongside English common law. As Murray Gleeson, former Chief Justice of the High Court of Australia, observed: The common law of Australia was based upon the common law of England. We inherited it at the time of European settlement. The word ‘common’ was a reference to the rules that applied to all citizens, the laws all people had in common, as distinct from special rules and customs that applied to particular classes, such as members of the clergy, or in particular places. The rules of the common law are judge made. They were developed and refined by English, and, later, Australian courts, originally at a time when parliaments were less active in the area of law making than they are today.18

Since colonisation, the advent of responsible self-government and the later federation of the Australian colonies into a nation, legislation has become an important source of criminal law in the various Australian jurisdictions. Some states, namely Queensland, Western Australia and Tasmania, plus the Northern Territory, have codified the criminal law following the Criminal Code drafted in the 1890s by Sir Samuel Griffith,

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the first Chief Justice of the High Court of Australia. A code is legislation that seeks to thoroughly cover the law in a particular area—that is, both the common law and statutes in that field of law. More recently, the criminal law in the Australian Capital Territory has been largely codified in the Criminal Code 2002 (ACT), which corresponds to the Commonwealth Criminal Code Act 1995.19 The criminal law in these five jurisdictions and the Commonwealth are not specifically considered in this book although reference may, at times, be made to cases where code provisions have been interpreted by the courts, including the High Court, and the decisions have direct application to what are known as the ‘common law’ jurisdictions. 20 The focus of the book is on the ‘common law’ jurisdictions of New South Wales, Victoria and South Australia. These jurisdictions derived their criminal law from English common law and retain the common law as an important contemporary source of criminal law. The legislation pertaining to criminal law in these jurisdictions has expanded over time and there is a principal consolidated statute in each jurisdiction, namely: •• Crimes Act 1900 (NSW) •• Crimes Act 1958 (Vic) •• Criminal Law Consolidation Act 1935 (SA). Although some aspects of the British influence are still apparent today, the criminal law in the Australian common law jurisdictions largely revolves around a working knowledge of the principal criminal law statutes and common law principles, which supplement and inform the various legislative provisions. Some parts of the common law have been completely replaced by statutory provisions. Where there is a conflict between the sources of law, the statute prevails. There are also other statutes in each jurisdiction that deal with certain aspects of the criminal law, criminal procedure and sentencing; and, where necessary, these statutes are identified and discussed. When you are thinking about the criminal law in each of the common law jurisdictions, you must consider the relevant key statutes and common law principles. For example, in New South Wales the Crimes Act 1900 (NSW) is a principal source of criminal offences and defences; the Criminal Procedure Act 1986 (NSW) contains comprehensive provisions as to the procedures to be followed in criminal cases in all New South Wales courts; R v Williams (1990) 50 A Crim R 213 and R v Blackwell (2011) 81 NSWLR 119 are leading cases on the meaning of ‘recklessness’ in criminal offences; and Wilson v The Queen (1992) 174 CLR 313 is the seminal case authority on the legal test for the offence of ‘manslaughter by an unlawful and dangerous act’—namely, the unlawful act that causes the victim’s death must be dangerous in the sense that it carries with it ‘an appreciable risk of serious injury’ to a person (at 333).

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THE PARTIES TO A CRIMINAL CASE In considering the common law as a principal source of the criminal law it is also important to understand the nomenclature, or system of names, for the parties to a case. The fundamental dichotomy of prosecution and defence reflects the adversarial system operating in all Australian jurisdictions. In this system the parties to an allegation of the commission of a criminal offence present their cases to an impartial arbiter who has the authority to make a decision and impose a punishment when required. Depending on the particular level of a court before which the proceedings are conducted within a jurisdiction, the prosecution and defence will be differently described, as set out in Table 1.1. TABLE 1.1 Key terms for parties to a criminal case TYPE OF CASE

PROSECUTION

DEFENCE

Proceedings before a magistrate

Police informant Director of Public Prosecutions (DPP)

Defendant Offender (if convicted and sentenced)

Proceedings before a judge or judge and jury

Director of Public Prosecutions (DPP) The Queen, The Crown (R)

Defendant or accused Prisoner (if convicted) Offender (if convicted and sentenced)

In criminal appeal cases, the party appealing a particular decision or outcome is known as the ‘appellant’ and the other party as the ‘respondent’. Where an appeal is not available as of right, but an application for leave to appeal must first be determined by the court (as in applications for special leave to appeal to the High Court), the parties are the ‘applicant’ and the ‘respondent’, as illustrated in Table 1.2. A single case may progress through several different courts and it is important to be able to align the terminology used in each court with the relevant party to the case. TABLE 1.2 Key terms for parties to a criminal appeal PARTY LODGING APPEAL

OTHER PARTY

Appellant (right of appeal)

Respondent

Applicant (where leave of court required)

Respondent

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CRIMINAL JURISDICTION AND ­GEOGRAPHICAL ­NEXUS When you are considering the application of criminal law in Australia, you need to be aware of some important jurisdictional considerations of each state and territory—by this we mean what particular laws apply and where they apply. This is complicated by the existence of a Commonwealth criminal law, which has national coverage but is limited to certain categories of crime in accordance with the relevant constitutional heads of power. There is no power in the Commonwealth Constitution relating specifically to the criminal law so the Commonwealth parliament has created criminal laws by using its ‘external affairs’, ‘taxation’, ‘import/export’, and ‘trade and commerce’ powers under s 51 of the Constitution. Particular examples of Commonwealth criminal offences are importation of prohibited drugs, terrorism, people smuggling and various fraud offences related to taxation and social security payments. These crimes relate to particular areas of national and international regulation. On the other hand, the criminal law of each state and territory is directed to offences against the person, including murder, non-fatal assaults and sexual assaults; property offences including stealing and frauds; drugs offences, including supply, manufacture and use of prohibited drugs; and public order offences, including offensive behaviour, property damage and prostitution. These offences must be committed with a territorial or geographical nexus with a particular state or territory. Regarding this nexus requirement for a particular state criminal jurisdiction to apply, there are useful examples of geographical provisions in the Crimes Act 1900 (NSW) ss 10A–10F and the Criminal Law Consolidation Act 1935 (SA) ss 5E–5I. In New South Wales, a ‘geographical nexus’ must be established between the state and the offence before the courts have jurisdiction to try the offence. A ‘geographical nexus’ exists where ‘the offence is committed wholly or partly in the State’ or ‘the offence is committed wholly outside the State, but the offence has an effect in the State’.21 The South Australian legislation is similar. However, it is more elaborate and uses the phrase a ‘territorial nexus’, which exists if: (2) (a)  a relevant act occurred wholly or partly in this State; or (b) it is not possible to establish whether any relevant acts giving rise to the alleged offence occurred within or outside this State but the alleged offence caused harm or a threat of harm in this State; or (c) although no relevant act occurred in this State— (i) the alleged offence caused harm or a threat of harm in this State and the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred; or

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(ii) the alleged offence caused harm or a threat of harm in this State and the harm, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the law of this State; or (iii) the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred and the alleged offender was in this State when the relevant acts, or at least one of them, occurred; or (d) the alleged offence is a conspiracy to commit, an attempt to commit, or in some other way preparatory to the commission of another offence for which the necessary territorial nexus would exist under one or more of the above paragraphs if it (the other offence) were committed as contemplated.22

The effect of such territorial provisions is essentially the same across the various jurisdictions. The provisions make clear which state judicature has the authority to hear a particular case. This is important now because movement across borders has become commonplace and crimes can be carried out in a variety of forms, including by electronic and other instantaneous means.

THE TWO BRANCHES OF THE CRIMINAL LAW The criminal law is divisible into two branches but these branches interlink and overlap, so they cannot be studied in isolation. These branches are the substantive criminal law and the procedural criminal law. Despite the fact that, traditionally, most doctrinal analysis of criminal law has been presented by separating substantive law from criminal procedure, David Brown and his co-authors observe that: Law-makers must be conscious of the relationship which exists between the requirements of the substantive law and the practices used by enforcement agencies to collect and extract evidence to meet those requirements … to take substantive criminal law out of the context of the criminal process may be convenient, but it leads to a fundamentally distorted picture of the way in which criminal law operates in society.23

This important correlation between the substantive and procedural criminal law will be illustrated in this book, with pre-trial and trial procedures covered in Chapter 3 and the various substantive criminal offence categories examined in the following chapters. As students of the criminal law, you must be able to distinguish between substantive and procedural criminal law. But at the same time you must recognise that the evidence gathered during the police investigation of a complaint about an alleged offence will ultimately be used as the basis to establish the elements of any offence charged against a defendant. The way in which this evidence has been gathered, and whether the requirements of the procedural criminal law have been complied with, will have a direct impact on whether the prosecution can prove the elements of the offence charged, beyond reasonable doubt in a court hearing.

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TABLE 1.3 The two branches of criminal law SUBSTANTIVE

PROCEDURAL

Concerned with—legal rules and principles which identify behaviour as legally criminal Comprises—elements of particular criminal offences (conduct and mental) and the requirements of defences Illustration—the offence of murder is made up of the following elements: (1) an act or omission by a person which causes the death of another person, and (2) the act or omission causing death was done, or omitted to be done, with the intention to kill or to cause grievous bodily harm to that other person or with reckless indifference to human life.

Concerned with—legal rules and regulations that determine the structure and function of, and regulate the operation of, the criminal justice system Comprises—police powers of investigation and detention of suspects, process of bringing an alleged offender before the court, the conduct of the trial of a criminal offence, sentencing and the administration of punishment Illustration—a person may be arrested where there are reasonable grounds to suspect they have committed an offence. That person may be searched and anything found may be seized. The person may then be detained for a reasonable time while the police investigate the alleged crime, and the person may consent to being electronically interviewed. If a decision is made to charge the person, a Court Attendance Notice or equivalent documentation will be issued and the person may be released to bail.

THE MODEL CRIMINAL CODE As previously noted, there is no single, uniform body of criminal law in Australia. Each state and territory has its own set of criminal laws. In addition, the Commonwealth criminal law regulates those matters within the domain of its constitutional powers. A major attempt to reform and harmonise the criminal law in Australia has been under way for some time with the development of a Model Criminal Code, designed to be adopted uniformly across all nine Australian jurisdictions. Since 1991, this project has been the ongoing work of the Model Criminal Code Officers Committee (MCCOC) established by the Standing Committee of Attorneys-General (SCAG).24 Over time the MCCOC produced a series of reports dealing with the proposed content of the Model Criminal Code. The Criminal Code Act 1995 (Cth) enacted part of the Model Criminal Code in the Commonwealth jurisdiction; the Commonwealth Criminal Code commenced operation on 1 January 1997.25 A range of offences has subsequently been added to the Commonwealth Criminal Code, many of which reflect the work of the MCCOC. The Model Criminal Code has also influenced the development of the

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criminal law in the Australian Capital Territory. Since 1 July 2009 all criminal offences in the Australian Capital Territory have been interpreted by reference to the Criminal Code 2002 (ACT), which is almost exactly the same as the Model Criminal Code developed by the MCCOC. There is little evidence to suggest that implementation of the Model Criminal Code (or any other attempt to codify the criminal law) is likely in the common law jurisdictions. In South Australia and Victoria, some parts of the criminal law have been codified, including through the adoption of some chapters of the Model Criminal Code in their respective legislation, the Crimes Act 1958 (Vic) and the Criminal Law Consolidation Act 1935 (SA), but there is no uniformity. In New South Wales, some provisions from the Model Criminal Code have been implemented and included in the Crimes Act 1900 (NSW), but there have been no signs that a wholesale codification of the criminal law in New South Wales, Victoria or South Australia is being considered.26 Nevertheless, the range of subject matter now covered by uniform or Commonwealth laws means that legal practitioners are increasingly likely to encounter the Commonwealth Criminal Code in advising clients charged with criminal offences.27 Overall, criminal law statutes in New South Wales, Victoria and South Australia remain incomplete and presuppose the continued existence of the common law. It seems that uniform Australian criminal laws are still an ideal that will not be reached in the foreseeable future because state jurisdictions cling to their power to create criminal laws to suit what are seen as their own local and specific conditions.

Important references For more extensive coverage of the issues relating to what is crime and criminal law, the sources of Australian criminal law and the Model Criminal Code addressed in this c ­ hapter, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and, Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014) Chapter 1 ‘The Fundamentals of Criminal Law’ 2–18. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 1 ‘Theory and the Criminal Law’ 3–76 and Chapter 2 ‘General Principles’ 77–86. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 2 ‘Criminalisation and ­Penality’ 46–143 and Chapter 3 ‘Components of Criminal Offences’ 145–46. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 1 ‘Criminal Responsibility’ 1–27. Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (2015). Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 1 ‘General Principles’ 1–15.

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Marinella Marmo, Willem de Lint and Darren Palmer (eds), Crime and Justice: A Guide to Criminology (4th edn, 2012) Chapter 1 ‘What is Crime and who is the Criminal?’ 3–24 and Chapter 4 ‘Individual Explanations for Crime’ 69–95. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004) Chapter 1 ‘Defining Criminal Laws’ 3–48. Rob White, Fiona Haines and Nicole Asquith, Crime and Criminology (5th edn, 2012) ­Chapter 1 ‘The Study of Crime’ 1–22. Rob White and Santina Perrone, Crime, Criminality and Criminal Justice (2nd edn, 2015) Introduction ‘Understanding Criminal Justice’ 2–10 and Chapter 1 ‘Doing Criminology: Measuring Crime as an Example of Criminological Research’ 28–33.

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ASSESSMENT PREPARATION Active learning questions 1 Is there an absolute definition of crime? 2 How do we distinguish between criminal behaviour and behaviour that is simply socially unacceptable? 3 Is it likely that the Model Criminal Code will ever be uniformly adopted as the criminal law for all Australian jurisdictions? Why or why not? 4 What are the advantages and disadvantages of a uniform national criminal law? 5 Imagine that you are a newly admitted legal practitioner preparing an advice about a criminal matter. a What sources of law must you consult? b In what order must these sources be applied? c How can case law be used in formulating your advice? d Are interstate or international sources of law relevant? 6 Identify a criminal offence that was recently enacted in your jurisdiction. a What rationale or justification was offered to support the creation of this criminal offence? b What influences were operating, including by any specific individuals or groups, leading to the enactment of this offence? c What harm does this criminal offence purport to address? d Do you think that this criminal offence might achieve its purpose? Why/why not? e Do you foresee any difficulties associated with the enforcement of this criminal offence? f What (if anything) does the enactment of this criminal offence tell us about the development of the criminal law more broadly?

Discussion question A Crime, or misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it … The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems principally to consist in this: that private, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individual; wrongs, or crime[s], are breach and violation of public rights and duties, due to the whole community … In all cases the crime includes an ­injury: every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community.28

Can the essence of crime be distilled in terms of injury to the wider community or is Blackstone’s conception of crime in the above extract historically contingent and thus too ­narrowly drawn in the contemporary context? Can you imagine a society without ­criminal law? There are a number of things for you to think about when answering this ­question ­relating to the nature of crime and the reach of the criminal law, which have been ­considered in this chapter. It is a useful platform to use for writing an essay.

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Notes 1 Henry Miller, The Air-Conditioned Nightmare (1945) 87. 2 Peter Butt (ed), LexisNexis Concise Australian Legal Dictionary (4th edn, 2011) 147. 3 Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ in Andrew Ashworth, Positive Obligations in Criminal Law (2013) 1–30. 4 Ibid 2. 5 Ibid 28–9. 6 Ibid 29. 7 Ibid 30. 8 Glanville Williams, Textbook of Criminal Law (2nd edn, 1983) 27. 9 Mick Woodley (ed), Osborn’s Concise Law Dictionary (11th edn, 2009) 125. 10 Paddy Hillyard and Steve Tombs, ‘Beyond Criminology?’ in Paddy Hillyard, Christina Pantazis, Steve Tombs and Dave Gordon (eds), Beyond Criminology: Taking Harm Seriously (2004) 13. 11 See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 103–10. 12 Rob White, Fiona Haines and Nicole Asquith, Crime and Criminology (5th edn, 2012) 5–6. 13 Ian Warren, ‘What is Crime and who is the Criminal?’ in Marinella Marmo, Willem de Lint and Darren Palmer (eds), Crime and Justice: A Guide to Criminology (4th edn, 2012) 13. The international dimension of criminal law is beyond the scope of this book; see generally Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) Chapter 15 ‘International and Transnational Crimes’ 941–1041. 14 Warren, ibid 12. For example, anti-discrimination laws allow for some protection of human rights, but are not typically regarded as criminal laws. 15 Mark Israel, ‘What is Crime?’ in Andrew Goldsmith, Mark Israel and Kathleen Daly (eds), Crime and Justice: A Guide to Criminology (3rd edn, 2006) 11. 16 White, Haines and Asquith, above n 12, 8–9. 17 See Gregory D Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788–1900 (2002) 7–8. 18 Murray Gleeson AC, The Rule of Law and the Constitution (Boyer Lectures, 2000) 6. 19 This is also known as the Model Criminal Code. See further discussion in the section headed ‘The Model Criminal Code’. 20 For an overview of codification of criminal laws in Australia and critical analysis of ­approaches to interpretation in ‘code’ and ‘common law’ jurisdictions, see Stella ­Tarrant, ‘Building Bridges in Australian Criminal Law: Codification and the Common Law’ (2013) 39(3) Monash University Law Review 838. 21 Crimes Act 1900 (NSW) ss 10C(1) and (2). See also s 10B(3) as to interpretation of ‘the place in which an offence has an effect’. 22 See Thai v Director of Public Prosecutions (South Australia) (No 2) (2009) 196 A Crim R 449 for a useful example of the application of the territorial nexus ­provisions in a case involving various counts of ‘falsifying documents with intent to ­deceive’. 23 Brown et al., above n 11, 27. 24 The MCCOC was later renamed the Model Criminal Law Officers Committee (MCLOC), and in 2011 was replaced by the National Criminal Law Reform C ­ ommittee. Also, the Standing Council on Law and Justice (SCLJ) replaced SCAG in 2011; the SCLJ was

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25

26

27

28

then itself replaced by the Law, Crime and Community Safety Council in July 2014. A Model Criminal Code was released by the Parliamentary Counsel’s ­Committee in May 2009, and is available online at . The ‘General Principles of Criminal Responsibility’ set out in Chapter 2 of the ­Commonwealth Criminal Code (based on the Model Criminal Code) have applied to all Commonwealth criminal offences since 15 December 2001: see Criminal Code (Cth) s 2.2(2), (3). For a discussion of the implementation of MCCOC reports, which to date has been piecemeal, see Matthew Goode, ‘Constructing Criminal Law Reform and the Model Criminal Code’ (2002) 26 Criminal Law Journal 152. See, for example, Road Rules 2014 (NSW) r 10-1 regarding the application of ­Commonwealth Criminal Code Chapter 2 to offences against the Road Rules 2014 (NSW). For a case example of the potential significance of this development, see Police v Rankin; Police v Roberts [2013] NSWLC 25. William Blackstone, Commentaries on the Laws of England (1st edn, 1769) Book IV, Chapter 1, 5.

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CHAPTER 2

DETERMINING CRIMINAL RESPONSIBILITY AND BASIC ASPECTS OF PROOF COVERED IN THIS CHAPTER In this chapter, you will learn about: • the elements of crime—conduct and mental elements • intention, recklessness and negligence • strict liability and absolute liability offences • who can be criminally responsible • the burden of proof • basic aspects of proof and fact-finding • basic evidentiary concepts and sources of proof.

CASES TO REMEMBER R v O’Connor (1980) 146 CLR 64 R v Mitchell [1983] 1 QB 741 Blackwell v The Queen (2011) 81 NSWLR 119 Thabo Meli [1954] 1 All ER 373 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 R v Potisk [1973] SASR 389 Leichhardt Municipal Council v Hunter (2013) 83 NSWLR 637 Proudman v Dayman (1941) 67 CLR 536 R v Walker (1994) 77 A Crim R 236

STATUTES TO REMEMBER Crimes Act 1900 (NSW) Part 11A Criminal Law Consolidation Act 1935 (SA) Part 8

INTRODUCTION In this chapter you will be introduced to the basic principles of criminal responsibility, which will provide an essential foundation for understanding the practical operation of the criminal law. As we move on to the discussion of specific offences in later chapters, you will gradually come to see the general principles of criminal responsibility in action in a concrete way, which should enhance your overall understanding of the criminal law.

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Before an individual can be convicted of the commission of a crime, there are two important elements of criminal responsibility that must be proved beyond reasonable doubt. These are prohibited conduct and a guilty mind. There is a third element relating to the availability of any defences outside the defining conduct and mental elements of the particular criminal offence which may operate to allow a person to avoid criminal responsibility, but this will be examined later in this book. 1 The presence of the physical element (or prohibited conduct) and the mental element (or guilty mind) together is expressed in the Latin maxim actus non facit reum, nisi mens sit rea.2 The terms actus reus and mens rea have been taken from the maxim to describe the two primary elements of criminal liability. They are widely used by the courts, lawyers and academics, although a variety of other terms, with which you should become familiar, are also used. The actus reus refers to the act that attracts liability, the conduct that is the basis of the criminal offence. It is also referred to as the ‘external element’, ‘physical element’ or ‘conduct element’. The mens rea refers to the notion of a guilty mind; that is, the criminal state of mind that must be proved to have accompanied the conduct of the individual. It is also referred to as the ‘fault element’ or ‘mental element’. Criminal liability arises where the physical and mental elements coincide in time.3 Generally, the criminal law does not seek to punish those who engage in prohibited conduct without the requisite guilty mind. As discussed in the How to Answer Questions section, an important focus of this book is on developing problem-solving skills. Every day in criminal law practice, there arise problem situations that require practitioners to analyse the facts of a case and apply the relevant law in order to work towards a solution. A good grasp of the basic principles of criminal responsibility is essential to being able to engage in this type of analysis. Along with this, you will need a basic understanding of how facts are used as evidence in proof of whether a criminal offence has been committed.

THE CONDUCT ELEMENT (ACTUS REUS) Although actus literally means ‘an act’, the concept of actus reus in criminal liability encompasses a broader range of the accused’s behaviours, as well as other concerns. A legal definition of a specific crime might include all or some of the following three features: (1) conduct (2) circumstances (3) consequences. Conduct is the basic type of behaviour—that is, acts, omissions or states of being. The legal definition of a crime may also require that the conduct take place

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in certain specified circumstances. For example, an assault on a police officer must take place in circumstances where the officer is acting in the execution of their duty. Sometimes a legal definition of a crime will refer to conduct that causes specified prohibited consequences or results. For these crimes the prosecution will have to prove a causal link between the act of the accused and the prohibited consequences. An example is the offence of murder, where the prosecution must prove that the conduct of the accused caused the victim’s death.4 An act is simply the doing of a thing that attracts the operation of the criminal law. The relevant act must be voluntary; that is, it must be a product of a person’s volition. The bodily movement that constitutes the conduct must be a result of the exercise of the will to act and not simply a reflex action. Voluntariness must be distinguished from intent and other forms of mens rea. In practice, issues as to the voluntariness of the actus reus rarely arise and it will generally be an evidentiary presumption that an accused’s conduct was voluntary: R v Falconer (1990) 171 CLR 30. If, however, evidence that indicates the accused’s conduct may not have been voluntary is presented, the prosecution must provide proof of the voluntariness of the acts relied upon. This is illustrated in cases such as Ryan v The Queen (1967) 121 CLR 205 and Murray v The Queen (2002) 211 CLR 193. Both cases involved an armed robbery resulting in the death of the victim and in each case the accused contended that the discharge of the gun was a reflex action and not a voluntary act. In each, the court concluded that the involuntary movement concerned could not be artificially separated from its broader context and the conduct was found to be voluntary. In Jiminez v The Queen (1992) 173 CLR 572, the accused’s acts were held not to be voluntary in circumstances where he fell asleep while driving a car (at 577–9). Some offences may be committed by omission rather than an act—that is, where the accused has refrained from doing something required by the law. 5 In the modern context, there are many statutory regulatory offences that impose duties on people to act, such as to submit a tax return, provide company reports to shareholders, keep equipment properly maintained and provide a safe working environment. Most questions about an omission being the relevant form of conduct in a criminal offence have been raised in the context of homicide and will be fully considered in Chapter 7. The other type of conduct to consider relates to a status or state of being. In these types of offences the individual is found in a particular state which results in criminal liability. There have been various status offences throughout history (for example, vagrancy and being drunk in a public place).6 In the contemporary context, status offences are comparatively rare, although some of the offences relating to membership of terrorist organisations and outlawed motorcycle groups have this character.7

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THE MENTAL ELEMENT (MENS REA) Mens rea does not refer to any particular state of mind; rather, it is a generic term for a number of different mental states including intent, knowledge, recklessness and negligence, each of which we will examine in turn. There may be different mens rea requirements for the constituent parts of the actus reus. In relation to conduct, circumstances and consequences we must ask what kind of mens rea is required in relation to each of these elements (where they exist) of the actus reus. It is important to understand the distinction between a subjective standard and an objective standard in criminal responsibility. You will see these terms used frequently in this and other textbooks, and in cases where certain standards regarding what the prosecution must prove about the state of mind of the accused are imposed. The distinction is best illustrated by reference to mens rea. If the inquiry is into the accused’s actual state of mind at the time they committed the actus reus, this is a subjective standard. It is a test of blameworthiness based upon what the individual accused actually believed or knew at the time of the conduct. As we are not mindreaders, a determination of the accused’s actual state of mind can be quite difficult to make, particularly with the requirement of proof beyond reasonable doubt. 8 If an accused does not admit that they had a particular mental state at the time of committing the actus reus, it must be inferred from the accused’s conduct, words and all the surrounding circumstances before, during and after the commission of the offence.9 Consequently, in the contemporary legislative landscape, subjective standards are not always required. Rather, there has been an increased use of objective fault standards in criminal offences. These involve a consideration of the conduct and judgments of an accused compared to an external standard. The focus is on the reasonableness of the accused’s lack of awareness rather than seeking to establish their actual state of mind. The common standard is that of the hypothetical reasonable or ordinary person placed in the position of the accused. The questions asked are: what ought the accused have been aware of? And, even if they did not have this awareness, what precautions should they have taken in the circumstances? The starting point for identifying the mental element in criminal offences, where it has not been clearly stated by parliament, is a presumption that it is subjective. The case of He Kaw Teh v The Queen (1985) 157 CLR 523 illustrates that this presumption is particularly important when the mental element for a statutory offence must be identified and it is not expressed in the words used to describe the offence. The presumption does not mean, however, that the mens rea for criminal offences will always be the subjective forms of actual intent or knowledge. For some offences an accused will be held liable on the basis of an objective standard. We will now examine the requirements of the various states of mind that fall under the general heading of mens rea.

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INTENT Intent is the paradigmatic subjective form of mens rea. Eminent English criminal law academic Professor Glanville Williams has stated that the ‘general legal opinion is that intention cannot be satisfactorily defined and does not need a definition, since everyone knows what it means’.10 Despite this largely widespread knowledge, Professor Williams went on to elucidate that ‘as a philosophical matter … intention is readily definable … a consequence is said to be intended when the actor desires that it shall follow from his conduct’.11 This seems straightforward, and similar definitions have been expressed in statutes. For example, in the Criminal Code (Cth) s 5.2(1), a person is defined as intending to act if they ‘mean to engage in that conduct’. The general principles of criminal responsibility have been codified in Chapter 2 of the Schedule to the Criminal Code (Cth). Although these principles have not been adopted in statutory form in the common law jurisdictions, there are some definitions, including of ‘intention’, that can still be usefully applied in these jurisdictions. It is legitimate to use the definitions of words found in other sources, including dictionaries and other comparable legislation, to assist in the interpretation of these words. Accordingly, ‘intention’ effectively requires the prosecution to prove that an accused meant to do the act that constitutes the physical conduct component of an offence. If there is an element of an offence that a particular consequence must be caused, intent to cause that consequence will be established where evidence is adduced to show that it was the accused’s purpose to bring about the consequence. As an alternative, proof of intent to cause a consequence may be established where an accused was aware that it was certain to happen, even if that consequence was not specifically desired.12 In practice, proving intent involves jurors (or other factfinders) taking into account their own experience of life and drawing reasonable inferences from the words and actions of the accused. It is important not to confuse intention with motive. A motive—namely, an emotion or force such as jealousy, fear, greed or compassion that provokes action—may be relevant evidence going to proof of intention, but it is not equivalent to intention. It may form part of the circumstantial evidence in a case that with other evidence goes to prove that an accused intentionally engaged in the prohibited conduct. Motive can be an important part of the evidence for the prosecution in murder trials. Courts in the United Kingdom have attempted to distinguish criminal offences of ‘specific intent’ from those of ‘basic’ or ‘general intent’, largely for the purpose of deciding when evidence of the accused’s intoxication is relevant to a determination of their state of mind. In cases like R v Morgan [1976] AC 182 and R v Majewski [1977] AC 443, courts in the United Kingdom have used this distinction so that crimes of basic or general intent are those in which the mens rea of the offence is an intention to commit the very act that constitutes the offence—that is, mens rea does not

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extend beyond commission of the act. An example is the offence of assault. 13 Conversely, a crime of specific intent relates not to acts but to consequences, so that the requisite mens rea extends beyond commission of the act to a desire for certain consequences to result. For example, the offence of ‘wounding with intent to cause grievous bodily harm’ in the Crimes Act 1900 (NSW) s 33(1) involves the specific intent to cause grievous bodily harm as the consequence of an act of wounding another person. The common law in Australia, however, has rejected the United Kingdom distinction regarding intent.

A CASE TO REMEMBER R v O’Connor (1980) 146 CLR 64 While O’Connor was stealing from a car, a police officer interrupted and attempted to arrest him. In resisting arrest O’Connor stabbed the officer with a knife. At his trial for theft and wounding with intent to resist arrest,14 O’Connor gave evidence that he had been taking an hallucinogenic drug and drinking alcohol throughout that particular day and could not remember any of the events. There was medical evidence that the combination of that drug and alcohol could have caused O’Connor to be incapable of forming the intent to steal or wound. The direction from the trial judge was in accordance with the United Kingdom decision in Majewski that intoxication was relevant only to crimes of specific intent, so that it was open to the jury to convict O’Connor of simple ‘wounding’, rather than wounding with intent to resist arrest. And that is what the jury did. O’Connor’s appeal to the Victorian Court of Criminal Appeal was allowed, with that court refusing to follow Majewski. The prosecution then appealed to the High Court of Australia where the judges considered Majewski and, by majority, rejected it, criticising the ‘specific’ and ‘basic intent’ division of crimes.15

Following the High Court decision in O’Connor, students in Australian common law jurisdictions did not have to worry about drawing that somewhat elusive distinction between crimes of ‘basic’ and ‘specific intent’. In New South Wales, however, Part 11A of the Crimes Act 1900 (NSW) abolished the common law relating to the effect of intoxication on criminal liability (s 428H) and includes the distinction between ‘crimes of specific intent’ and other offences. The effect of the legislation is encapsulated in ss 428C and 428D as follows: 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.

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(2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 428D  Intoxication in relation to other offences In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced—cannot be taken into account, or (b) if the intoxication was not self-induced—may be taken into account.

A table of offences of specific intent according to relevant section number of the Crimes Act 1900 (NSW) is set out in s 428B, following the general definition in s 428B(1) that these are offences ‘of which an intention to cause a specific result is an element’. The New South Wales Court of Criminal Appeal has recently indicated that Part 11A of the Crimes Act 1900 (NSW) impliedly limits the use of evidence of intoxication to only the ‘specific intent’ element of an ‘offence of specific intent’. 16 We must therefore recognise that some criminal offences require that the prosecution prove both ‘specific intent’ and ‘basic intent’ elements beyond reasonable doubt. For example, the offence of ‘using an offensive weapon with intent to resist arrest’ in s 33B(1) of the Crimes Act 1900 (NSW) includes both a basic intent to use an item as an offensive weapon and a specific intent to prevent or hinder lawful apprehension or detention.17 This approach further narrows the circumstances in which evidence of intoxication can be used to negate proof of an element of a criminal offence in New South Wales. The common law has also been abolished in South Australia and replaced with Part 8 of the Criminal Law Consolidation Act 1935 (SA).18 The main provision is s 268, and there are some similarities with the New South Wales legislation despite the use of different legislative language. Importantly, the mental element of an offence is presumed to exist where a defendant was ‘impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence’ except where it is necessary to establish ‘that the defendant foresaw the consequences of his or her conduct; or was aware of the circumstances surrounding his or her conduct’. 19 Finally, in relation to intention it is important to understand the doctrine of transferred intention or transferred malice. This involves attributing liability (including intention) to an accused in circumstances where an accused commits an act intended to cause harm to a certain person, and it transpires through inadvertence, incompetence or another reason that the harm is inflicted on a different person. The intention possessed by the accused in relation to the intended recipient of the harm

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may be legally transferred to the act committed against the actual victim of the harm. The result is that the accused will be liable for the same offence: the actual victim is substituted for the intended victim.20

A CASE TO REMEMBER R v Mitchell [1983] 1 QB 741 The accused pushed a person in a post office queue; who then fell against another person waiting in the queue. This latter person, an elderly woman, suffered a broken leg, which resulted in a pulmonary embolism caused by thrombosis of the left leg veins, from which she died. Mitchell was convicted of the manslaughter of the woman, as she was injured as a direct and immediate result of his act. In relation to intention to commit the act of ‘assault’, the court applied the principle of transferred malice. 21

KNOWLEDGE Like intention, knowledge is a subjective state of mind. It relates to the accused knowing or having an awareness of the existence of a circumstance or that a specific consequence will occur as a result of carrying out certain conduct. There has been some debate as to whether wilful blindness is equivalent to knowledge. In R v Crabbe (1985) 156 CLR 464, the High Court defined wilful blindness in these terms (at 471): When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.

The emphasis is on ‘for some purposes’. The later case law illustrates that ‘wilful blindness’ is not equivalent to knowledge, but is only some evidence that may be used in making an inference of actual knowledge. In Pereira v DPP (1988) 82 ALR 217, a case involving certain drugs offences, the High Court said that the term ‘wilful blindness’ should be used carefully by trial judges when the definition of the mens rea of an offence was expressed in terms of intention or knowledge. In relation to knowledge of the existence of drugs, the court observed that ‘a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter’ (at 219). At the same time it had to be emphasised to the fact-finder that ‘knowledge’ must be the only rational inference available from the circumstantial evidence of ‘wilful blindness’, which had to be proved beyond reasonable doubt.22 Even though the risk of confusion and error in using the term ‘wilful blindness’ has been acknowledged by the courts, it has not been outlawed and it may have evidentiary relevance in proving a subjective mens rea such as knowledge.

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RECKLESSNESS A large number of criminal offences where a subjective mens rea must be demonstrated can be proved by the prosecution on the basis that an accused was reckless as to whether their conduct would bring about the consequence or as to whether certain circumstances existed. It is important to understand that recklessness is a mental state and not a test of whether the accused’s actions were reckless (judged from the perspective of a reasonable onlooker, perhaps). Depending on the specific offence, recklessness may mean individual foresight of the possibility or probability of a consequence occurring, or of the existence of a certain circumstance. A person may be indifferent to the foreseen risk or they may hope it does not eventuate; either way the person is reckless.

A CASE TO REMEMBER Blackwell v The Queen (2011) 81 NSWLR 119 Blackwell was convicted after a trial by jury of an offence of maliciously inflicting grievous bodily harm with intent under s 33 of the Crimes Act 1900 (NSW). The charge related to a ‘glassing’ incident in a Sydney hotel on 13 October 2007, which caused severe injuries to the victim, including the loss of his left eye. At trial, the prosecution had also relied on a statutory alternative charge under s 35(2) of the Crimes Act 1900 (NSW). 23 Amendments to s 35 of the Crimes Act 1900 (NSW) had come into force on 27 September 2007 (that is, approximately two weeks before the incident in question). Those amendments had significantly altered the elements of the offences in s 35 of the Crimes Act 1900 (NSW). However, the jury at Blackwell’s trial were erroneously directed in relation to the repealed s 35 (that is, the version of the offence that had been in effect until 27 September 2007). Blackwell’s appeal against his conviction was successful on the basis that the failure to accurately direct the jury on the alternate charge had caused a miscarriage of justice. The reasoning of the New South Wales Court of Criminal Appeal in Blackwell provides a useful example of how the general principles of criminal responsibility are applied in interpreting criminal offences. Justice Beazley (as she then was) found (at 133) that ‘where the mental element of an offence is recklessness [in New South Wales], the Crown must establish foresight of the possibility of the relevant consequence’. Justice Beazley (James and Hall JJ agreeing on this point) then went on to find (at 135) that the ‘relevant consequence’ for the purposes of the s 35(2) offence (as it then stood) was grievous bodily harm. A number of provisions in the Crimes Act 1900 (NSW), including s 35, were amended after Blackwell. 24 The reasoning in Blackwell has subsequently been applied to other criminal offences involving consequence elements in New South Wales.25

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By way of further illustration, the New South Wales Court of Criminal Appeal held in the case of R v Kitchener (1993) 29 NSWLR 696 that recklessness in sexual assault offences not only means actual advertence by an actor to the possibility of non-consent by the victim, with that actor proceeding to have sexual intercourse regardless, but also extends to a failure to advert at all to the possibility of non-consent and just going ahead with the act.26 In South Australian rape law, failure to advert to possible non-consent is recognised as reckless under s 47(a) Criminal Law Consolidation Act 1935 (SA). In contrast, regarding the meaning of recklessness in relation to a charge of murder, the High Court held in the case of Royall v The Queen (1991) 172 CLR 378 that, to prove reckless indifference to human life within the definition of murder in s 18 of the Crimes Act 1900 (NSW), the prosecution had to show that the accused had foreseen that death was probable. This judgment followed the High Court’s decision in R v Crabbe (1985) 156 CLR 464, where the degree of risk of death that the accused must be shown to have foreseen was set at probable rather than possible. You can identify here a distinction between the tests for recklessness in offences of sexual assault (New South Wales) or rape (Victoria and South Australia) and murder; that is, murder requires advertent foresight of a probability of death, whereas foresight of the possibility of a lack of consent in sexual offences may be advertent or non-advertent. 27

NEGLIGENCE Negligence is a form of objective mens rea. Where the fault element for an offence is negligence, the inquiry is not focused on the accused’s mind (intention, knowledge) but rather on what a reasonable or ordinary person would have done in the circumstances of the accused. The accused’s conduct is compared with a standard of reasonableness that takes into account all the circumstances of the incident apart from the personal characteristics of the accused. Criminal liability is established where the accused does not meet the standard of reasonableness in the sense that the accused’s departure from the standard of conduct of the reasonable person is sufficiently great to warrant criminal punishment. An important example is provided by the manslaughter case of Nydam v R [1977] VR 430,28 where criminal negligence was said to involve ‘such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high degree of risk that death or grievous bodily harm would follow, that the doing of the act merits criminal punishment’ (at 445).

COINCIDENCE OF ACTUS REUS AND MENS REA It is a general principle of criminal responsibility that actus reus and mens rea must coincide in time; that is, both must be present at the same time for an offence to be committed. The principle is illustrated in the context of a

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murder case, Meyers v The Queen (1997) 147 ALR 440, by a joint judgment of the High Court (at 442): Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.

This requirement has led to the development of some interesting variations through decided cases that have descriptively ‘stretched’ the general principle of coincidence.

A CASE TO REMEMBER Thabo Meli [1954] 1 All ER 373 The Privy Council held that, in circumstances where there were a number of acts that were part of ‘one series of acts’, coincidence between actus reus and mens rea could fall at any point in that series of acts. This case involved a preconceived plan to kill the victim implemented when the several accused struck the partially intoxicated victim over the head. The accused, thinking their victim was dead, then rolled him over a cliff to make it look like an accident. In fact, at that time the victim was only unconscious and ultimately died from exposure. Therefore, the argument raised was that each accused could not be guilty, as at the time the body was rolled over the cliff (that being the actus reus), they lacked the intention to kill (that is, the mens rea). The Privy Council ultimately dismissed the appeal by holding that it was really one series of acts and could not be divided up in the way the accused contended, highlighted in the following observation by Lord Reid (at 374): There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan … Their crime is not reduced from murder to a lesser crime merely because the accused were under some misapprehension for a time during the completion of their criminal plot.29

A CASE TO REMEMBER Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 A different issue as to coincidence arose in this case, where there was a question whether Fagan had assaulted a police officer by driving a car onto the officer’s foot (the actus reus). Shortly after, Fagan realised the car wheel was on the officer’s foot and he refused to move it despite repeated requests from the officer to do so (the formation of the mens rea). The majority of the court held that there had been an assault by characterising Fagan’s

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conduct as a ‘continuing act’ rather than an act that was completed when the car initially stopped and mens rea had not been formed: It is not necessary that mens rea should be present at the inception of the actus reus, it can be superimposed upon an existing act. On the other hand the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault … There was an act constituting a battery[30] which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act [per James J].

A distinction had to be drawn between acts that are complete, though results may continue to flow from them, and acts that are continuing. An illustration where mens rea and actus reus did not coincide and the act was completed before a mens rea was formed (although results continued to flow from it) is found in the case of R v Potisk [1973] SASR 389.

A CASE TO REMEMBER R v Potisk [1973] SASR 389 This case involved an alleged larceny of money from the Bank of New South Wales through an error by the bank when exchanging American traveller’s cheques into Australian currency. Potisk did not realise the error until he went home, counted the money, and discovered there was an extra sum of money. He then decided to keep it. The majority of the Full Court of the Supreme Court of South Australia ruled that, despite the subsequent dishonesty, Potisk did not have the necessary mens rea at the time when he performed the actus reus (that is, taking and carrying away of property of some value) 31 and should be acquitted of larceny.

STRICT LIABILITY—HONEST AND REASONABLE ­MISTAKE OF FACT Offences of strict liability involve a restricted form of objective mens rea, which is applicable only to the circumstance component of the actus reus. The New South Wales Court of Criminal Appeal explained the distinction between offences of full mens rea and offences of strict liability in Leichhardt Municipal Council v Hunter (2013) 83 NSWLR 637 at 640: Offences of full mens rea require proof by the prosecution of an intention on the part of the defendant to commit the acts comprising the offence or proof of knowledge on the part of the defendant of the facts and circumstances comprising the offence. However, in relation to some offences, recklessness or negligence will suffice: He Kaw Teh v The Queen (1985) 157 CLR 523.

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Offences of strict liability on the other hand do not require proof of mens rea. Mens rea is presumed unless a defendant raises the ‘defence’ of honest and reasonable mistake of fact, whereupon the onus rests on the prosecution to disprove that defence: R v Wampfler (1987) 11 NSWLR 541. Regulatory offences, such as environmental offences or public health offences are invariably offences of strict liability.

Distinguishing strict liability offences (or elements) and those offences requiring proof of full mens rea involves statutory interpretation. This interpretive exercise was most famously explored by the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523. Essentially, ‘[t]he determination of an offence as a strict liability offence lies in the construction of the statute creating the offence, the subject matter of the statute and whether enforcement of the offence will be assisted by its strict liability status’.32 Characterisation of an offence or an element of an offence as ‘strict liability’ will depend largely on the words of the particular statutory provision from which the offence is drawn.33

A CASE TO REMEMBER Leichhardt Municipal Council v Hunter (2013) 83 NSWLR 637 Hunter was charged with breaching a control order contrary to s 49 of the Companion Animals Act 1988 (NSW). He was initially found guilty in the Local Court but appealed to the District Court, arguing that the offence required proof of full mens rea. The District Court judge found that the offence under s 49 of the Companion Animals Act 1988 (NSW) was not an offence of strict liability, and upheld the appeal. On request of the Council, the question of whether s 49 created an offence of full mens rea or strict liability was submitted to the New South Wales Court of Criminal Appeal as a question of law. The Court of Criminal Appeal held that s 49 did create an offence of strict liability, and identified the following relevant factors in its reasoning (at 640–1): •• The language used in s 49 did not suggest that full mens rea needed to be proven (other offences in the Act expressly required proof of intention). •• The Act did not provide for any defence to a charge under s 49. •• The penalty for the offence indicated it was much less serious than other offences in the Act. •• The statute was concerned with maintaining public safety by protecting the public from dangerous animals. •• Requiring proof of intention would make prosecuting breaches of s 49 difficult and hinder the operation of the Act.

If a statutory offence is identified as an offence of strict liability, the accused may raise the excuse of honest and reasonable mistake of fact once it has been proved that the accused was involved in the prohibited conduct. In raising this excuse, the accused has an evidential burden34 to show that they made an honest and reasonable mistake of fact (rather than law) as to the existence of circumstances

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which, if they existed, would have meant that no offence had been committed. The characterisation of this excuse originates from the High Court decision in Proudman v Dayman (1941) 67 CLR 536.

A CASE TO REMEMBER Proudman v Dayman (1941) 67 CLR 536 Proudman was convicted of permitting an unlicensed person to drive a motor vehicle contrary to s 30 of the Road Traffic Act 1934 (SA). On appeal to the Supreme Court, a judge set aside Proudman’s conviction on the grounds that she believed that the driver in question held a licence that was in force, that she had reasonable grounds for her belief, and that the prosecution had to prove that she knew the other driver was unlicensed. The Full Court of the Supreme Court allowed a prosecution appeal against that decision and restored the conviction, holding that the prosecution did not have to establish that Proudman knew a licence was not held by the person she permitted to drive, and that she had not made out any defence of mistake on reasonable grounds. In refusing an application for special leave to appeal, the High Court interpreted the offence as one of strict liability. A defence was therefore available: Proudman could not be considered to have committed the offence if she honestly believed on reasonable grounds that the driver was licensed. In the circumstances of the case there was no evidence to support her claim to such a belief.

As noted, the accused has the evidential burden of raising the issue of ‘reasonable mistake of fact’. However, once that is satisfied, the onus is on the prosecution to prove beyond reasonable doubt that the accused did not have an honest and reasonable belief as to the facts asserted.

ABSOLUTE LIABILITY An offence of absolute liability means there is no mens rea element. As this goes against the general presumption that all prohibited conduct should be accompanied by a guilty mind, the legislative intention must be clear and unambiguous before the courts will characterise an offence as one of absolute liability.35 A useful illustration of whether a statutory offence should be characterised as one of absolute liability is provided by the case of R v Walker (1994) 77 A Crim R 236, in relation to the offence of ‘failing to submit to a breath analysis’.36

A CASE TO REMEMBER R v Walker (1994) 77 A Crim R 236 Walker had been arrested after being subjected to a roadside breath test. When taken to the police station for breath analysis, Walker did not deliver enough breath into the machine for the purpose of analysing the amount of alcohol in the airflow from his lungs. This was taken as a refusal to undergo a breath analysis. The appellant asserted that he

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was too drunk to understand what was said to him, which was the basis of an argument for a reasonable excuse for failing to submit to the breath analysis. The judge who heard the initial appeal from the conviction before a Local Court Magistrate was of the view that there had to be ‘wilful or volitional neglect’ on the part of the appellant and as there was no evidence of that he allowed the appeal and dismissed the charge against Walker. On stated case by the prosecution, the Court of Criminal Appeal held that liability under the section was absolute and that the legislature made it clear that it is sufficient to establish a breach of the section if the person was required to undergo the test by an authorised police officer and failed to do so for whatever reason (at 240). Using the principles from He Kaw Teh (1985) 157 CLR 523, the court endorsed a statement from Hunt CJ at CL in Griffin v Marsh (1994) 34 NSWLR 104 as to the principles to be applied in deciding whether a statutory offence is one of strict liability or absolute liability: (1) The common law presumption is that an essential ingredient of every offence is that the defendant knew of the wrongfulness of his act unless the statute excludes that presumption either expressly or by necessary implication. (2) In determining whether the common law presumption has been displaced in a particular case, regard should be had to:

(a) the words of the statute itself; (b) the subject matter with which the statute deals; and (c) whether an absolute liability will assist in overcoming the mischief at which the statute is aimed.

WHO CAN BE CRIMINALLY RESPONSIBLE? An important question in criminal responsibility is who can actually commit criminal offences. Not all individuals are considered capable of criminal responsibility, yet criminal responsibility can be extended to legal entities, such as corporations. First, depending on their age, children are not considered capable of committing criminal offences. The minimum age for criminal responsibility is now fixed by statute at ten years in New South Wales, Victoria and South Australia.37 This age threshold has been set to reflect a belief that children have not developed sufficient maturity to understand the difference between right and wrong so as to be held criminally responsible for their acts when aged under ten. Further, there is a presumption at common law that children aged over ten years and under fourteen years are incapable of committing a crime. This presumption is referred to as doli incapax, and may be rebutted by the prosecution. In doing this, the prosecution must prove, in addition to the commission of the offence with the relevant intention, that the child knew that the act was wrong and was not simply being naughty or mischievous.38 Evidence to establish this knowledge may come from the child’s domestic and educational background, admissions to the police, conduct after the offence, conduct in court and previous convictions. 39

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The doli incapax presumption was criticised by the United Kingdom courts as of ‘no utility whatever in the present era’ in C (A Minor) v DPP [1994] 3 WLR 888 at 896, although on appeal the House of Lords ruled that the presumption was a wellestablished rule and the responsibility for abolition was reserved to the parliament. The UK Parliament did abolish this legal presumption in the Crime and Disorder Act 1998 (UK) s 34. However, it still operates in the Australian common law jurisdictions and is retained in the Criminal Code (Cth) s 7.2.40 As to extending criminal responsibility beyond individual persons, a corporation may be liable for, and convicted of, criminal offences to the same extent as a natural person, including offences that contain a mental element. There are two methods for proving the criminal responsibility of a corporation.41 First, a corporation may be held vicariously liable42 for the acts of its employees when they are carried out in the course of their employment with the corporation. The second method is termed the ‘principle of identification’ and was applied in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 and followed by the Australian High Court in Hamilton v Whitehead (1988) 166 CLR 122. The application of this principle depends on particular statutory provisions relating to corporations.43 It is based on being able to identify particular individuals within the company who are considered to be the ‘embodiment of the company’ so that their acts and state of mind are attributed to the corporation, leading to corporate criminal liability. These individuals, usually directors and other high-ranking officers with control and management of the business and affairs of the company, may also be characterised as the ‘directing mind and will’ of the corporation. An example of a statutory formulation of corporate criminal responsibility is found in the Criminal Code (Cth) ss 12.1–12.6 with the ‘board of directors’ and ‘high managerial agents’ identified as the persons with the authority and/or responsibility for the policies and activities of a body corporate.

THE BURDEN OF PROOF Significant questions in criminal responsibility include who has to prove that the accused committed certain conduct with the requisite mental element, and according to what standard this must be proved. The burden of proof in criminal cases is, as a general rule, placed on the prosecution and it ‘must prove the case beyond reasonable doubt … subject to … the defence of insanity and subject also to any statutory exception’.44 The standard direction on the burden of proof in the usual criminal case is: the Crown [prosecution] must satisfy the jury beyond a reasonable doubt of the guilt of the accused by establishing the essential ingredients of the charge to that standard, and that the accused is entitled to the benefit of any reasonable doubt in their minds, and that the accused does not have to prove that he is innocent.45

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The burden of proof has two components: the persuasive (or legal) burden and the evidential burden.46 The persuasive (or legal) burden lies on the party who alleges or asserts an issue. The evidential burden is one party’s duty of producing sufficient evidence for a judicial officer to call upon the other party to answer. 47 In criminal cases, the prosecution generally bears both the legal and the evidential burdens in relation to all facts in issue that relate to the guilt of the accused for an offence. There are some statutory exceptions in relation to the legal burden,48 in addition to the common law exception of the defence of ‘mental illness’ or ‘insanity’. 49 Also, where the accused raises certain defences, such as provocation and self-defence, 50 an evidential burden is placed on the accused. That is, the accused has to adduce sufficient evidence to have the issue left to the jury before the prosecution will be required to negative it by establishing guilt beyond reasonable doubt in accordance with the overriding persuasive burden of proof.51 Overall, ‘the evidential burden governs what the Judge does, in leaving the question to the jury or withdrawing it from them; the persuasive burden governs what [she or] he says, in directing the jury how they are to reach their verdict’.52

BASIC ASPECTS OF PROOF AND FACT-FINDING With those fundamental principles of criminal responsibility in mind, we will now turn to consider how the party bearing an evidential or persuasive burden goes about discharging that burden or proving what is necessary to advance their case. Disputes between the prosecution and defence in the adversarial context of a criminal case will usually be about what actually happened rather than the legal consequences of an agreed set of facts. The law of evidence is used to determine what information can and cannot be used to prove the facts in issue in proceedings before a court. There is a range of rules about the admissibility of evidence 53 and the application of these rules can often determine the outcome of a case. It is not proposed to examine these rules in detail as that will be the subject of further study in a later-year Evidence course. Here we can outline some basic matters relating to proof, fact-finding, important evidentiary concepts and sources of evidence to assist in the development of your legal problem-solving skills. Essentially, a prosecutor in a criminal case is looking for facts that will be proved through evidence to establish the elements of a crime. In contrast, the defence is looking for features in the evidence that will raise doubt about the existence of such facts. In preparing a criminal case it is necessary to ‘order the facts’ and arrange the evidence that supports the finding of those facts. First, all available information about the incident leading to potential criminal liability should be placed in chronological order. Second, a case theory should be developed—that is, ‘a narrative based on a sequence of causally related events … a chronology is the what, the when,

CHAPTER 2: DETERMINING CRIMINAL RESPONSIBILITY AND BASIC ASPECTS OF PROOF

and the where of the evidence; a theory of the case also includes the how and the why’.54 In building a chronology of events it is important to record the date, time and full description of a fact together with the sources of evidence for that fact. In assessing the utility of the fact, it is important to note whether it is in dispute, any inconsistencies in its description, or any other gaps in what is known about the fact. 55 This method of preparation for a real case can also be used as the initial stage of legal problem-solving. The finding of the facts in any given case is crucial to the final decision of the court. The process of fact-finding in the common law judicial system is based on the application of logic, reason and experience. In this process there are a number of basic evidentiary concepts to keep in mind when preparing a case and thinking about problem-solving. Table 2.1 gives a summary of some important evidentiary concepts and their meaning in the context of criminal cases. TABLE 2.1 Basic evidentiary concepts and their meanings in criminal cases BASIC EVIDENTIARY CONCEPT

MEANING

Facts in issue

These are the facts that must be proven by the prosecutor to establish the elements of the offence charged.

Relevance

Relevance is the logical connection between evidence and a fact in issue going to the probability of whether the fact can be proved.56 It helps us to decide an issue in a rational manner.

Admissibility

In addition to being relevant, evidence is admissible when it is not disqualified by some exclusionary rule of evidence (for example, the hearsay rule) or by exercise of judicial discretion. The question of admissibility is a matter of law.

Weight

This is the persuasive effect of relevant evidence once admitted in a case. Evidence will have weight in relation to the issue to which it is directed, according to the degree to which it is accepted by the fact-finder.

Probative value

This is the extent to which evidence affects the probability of the existence of a fact in issue in a case.57 It depends on the credibility of the source and the force of any inferences to be made from the evidence. (Continued )

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TABLE 2.1 Basic evidentiary concepts and their meanings in criminal cases (Continued ) BASIC EVIDENTIARY CONCEPT

MEANING

Inferences

These involve applying ordinary powers of reasoning in light of human experience to reach a conclusion about the existence of a fact.58 Inferences are particularly important in cases involving circumstantial evidence as they are drawn from those parts of the evidence that are accepted by the fact-finder about matters that have not been directly related in evidence; that is, a fact must have occurred in order to explain the circumstances. It must have foundation in the evidence to distinguish it from speculation and conjecture.

Burden of proof

The parties must have continual regard to the burden of proof in presenting evidence going to facts in issue. The standard of ‘beyond reasonable doubt’ is a high and rigorous standard designed to protect the liberty of the individual.

BASIC SOURCES OF PROOF The evidence presented in a criminal case to go to proof of facts in issue will originate from a particular source. The source of the evidence to be presented in proof of a fact in issue will often be important in determining whether the fact-finder believes the evidence and is persuaded to use it in coming to a conclusion about the existence of a fact in issue in the case. Overall, when you come to apply the legal problem-solving model to the problem questions commencing in Chapter 3, it will be important to order the facts and identify the particular sources of evidence that will be used in answering the question. There are three main sources to consider: (1) Testimonial evidence involves witnesses reporting their perceptions or opinions to the court. This can be from direct eyewitness observation of an event that goes to proof of a fact in issue. The accused, the victim and other eyewitnesses can give such evidence. For example, in a ‘murder’ case a witness may have seen the accused shoot the deceased in the head. Alternatively, a witness may report perceptions that amount to ‘circumstantial evidence’. Again, using the ‘murder’ case example, a witness might give evidence that he saw the accused carrying a gun and running from an area of bushland where the deceased was found shortly after with a gunshot wound in his head. It is relevant evidence in the sense that it may establish the accused had an opportunity and the equipment to kill the deceased.

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Opportunity, motive, the particular skills of and the equipment possessed by an accused are relevant and important categories of circumstantial evidence. They work by building up a strong pattern of circumstantial detail in order to persuade the fact-finder through inference as to the existence of a fact in issue. Through our experience of life, circumstantial evidence leads to a common sense or realistic conclusion about certain events or facts. (2) Real or tangible evidence is evidence the fact-finder in a courtroom experiences for themselves without having to rely on accounts of witnesses. The main classes of real evidence are physical objects, such as clothing, weapons, audio and video recordings, photographs, maps, models, charts and diagrams. Once admitted, this type of evidence will become exhibits in the hearing of a case. To be admitted, the relevance and authenticity of such evidence will usually be established through witnesses who have personal knowledge about how the particular object or other form of real evidence was obtained or created. Other forms of real evidence are views of the crime scene, demonstrations and experiments. (3) Documentary evidence can include all types of materials on which something is written or recorded.59 Typically, it will be information transferred from a person’s memory to paper by writing all the specific details, such as a statement, diary, contract or will.

Important references For more extensive coverage of the law and principles relating to determining criminal ­responsibility and basic aspects of proof, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014), Chapter 1 ‘The Fundamentals of Criminal Law’ 18–38 and Chapter 11 ‘Offences of Strict and Absolute Liability’ 530–62. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010), ­Chapter 2 ‘General Principles’ 106–46 and Chapter 3 ‘Principles of Criminal ­Responsibility’ 167–234. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia ­Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015), Chapter 3 ‘Components of ­Criminal Offences’ 144–258. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 2 ‘The Elements of Criminal Offending and Liability’ 29–63 and Chapter 12 ‘Intoxication’ 369–88. Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014), Chapter 1 ‘General Principles’ 41–70. Jeremy Gans, Modern Criminal Law in Australia (2012). Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004), Chapter 2 ‘Structuring Criminal Law’ 49–85.

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ASSESSMENT PREPARATION Active learning questions 1 What do you understand is the distinction between actus reus and mens rea? 2 Explain what is meant by the ‘voluntariness of the actus reus’. 3 Explain the difference between subjective and objective standards as applied in the different forms of mens rea for criminal offences. 4 Describe how the defence of ‘honest and reasonable mistake of fact’ operates in practice. 5 What do you understand to be an offence of absolute liability? Give examples. 6 ‘The evidential burden ensures that the prosecution is not saddled with a duty to disprove all possible defences however fanciful and incredible. It provides a practical means of controlling whether the defence has made a reasonable foundation for a defence, before requiring the prosecution to disprove it’ (from Bronitt and McSherry, Principles of Criminal Law (3rd edn, 2010) 138). Outline the differences between the evidential burden and the legal burden of proof in the criminal law. Give examples by reference to particular offences and defences.

Notes 1 See Chapter 11. 2 This translates as ‘an act does not make a man guilty of a crime unless his mind be also guilty’: Haughton v Smith [1973] 3 All ER 1109 per Lord Hailsham LC at 1113–14. 3 Meyers v The Queen (1997) 147 ALR 440. 4 The legal concept of causation in criminal law will be fully discussed in Chapter 7. 5 This is an exception to the general law principle that criminal liability does not attach to an omission or failure to act. See Commonwealth Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408, 421 [29] (French CJ, Gummow, Kiefel and Bell JJ), and Burns v The Queen (2012) 246 CLR 334, [97] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 6 See also Larsonneur (1933) 24 Cr App R 74 for an extreme example. 7 See Crimes Act 1900 (NSW) s 310J, Criminal Code Act 1995 (Cth) s 102.3 ­(applicable in Victoria under the Terrorism (Commonwealth Powers) Act 2003 and in South ­Australia under the Terrorism (Commonwealth Powers) Act 2002). See also ­Serious and Organised Crime (Control) Act 2008 (SA) s 35; Crimes (Criminal ­Organisations Control) Act 2012 (NSW) s 26; and Criminal Organisations Control Act 2012 (Vic) s 68. 8 See p 35 under the heading ‘The burden of proof’ for a discussion of this standard of proof in criminal cases. 9 See David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) 41–2 where the limited role of objective reasoning in the proof of subjective standards is discussed. 10 Glanville Williams, Textbook of Criminal Law (2nd edn, 1983) 74. 11 Ibid. 12 See also Criminal Code (Cth) s 5.2(3): ‘A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events’.

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13 14 15 16 17

18

19 20

21 22 23

24 25 26 27

28 29

30 31

32

See Chapter 5 for a detailed consideration of the law of assault. Crimes Act 1958 (Vic) s 17 (as it then was). See particularly Stephen J at 104–5. Harkins v R [2015] NSWCCA 263. Harkins v R [2015] NSWCCA 263. See also Julia Quilter and Luke ­McNamara, ‘Time to Define ‘The Cornerstone of Public Order Legislation’: The ­Elements of ­Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534, ­regarding the need for precision in identifying mens rea elements of criminal ­offences generally. For a detailed analysis and critique of the criminal law relating to intoxication in South Australia, see David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick ­Leader-Elliott, Ngaire Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 12 ‘Intoxication’ 369–88. Criminal Law Consolidation Act 1935 (SA) s 268(2)–(3). Some illustrative case examples are R v Saunders and Archer (1573) 75 ER 706; R v Latimer (1886) 17 QBD 359; R v Mitchell [1983] 1 QB 741; R v Demirian [1989] VR 97; Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421; and R v ­Gnango [2012] 1 AC 827. See also Police v Wilson (2012) 218 A Crim R 269. Note that this doctrine does not apply if an offence different to the one intended results from the accused’s conduct; see R v Pembliton (1874) LR 2 CCR 119. See also R v Schipanski (1989) 17 NSWLR 618 per Gleeson CJ at 620 in relation to the offence of ‘receiving’. Note that ss 33 and 35 of the Crimes Act 1900 (NSW) have been substantially amended since both the incident in question and the decision in this case; the current law relating to aggravated assault offences in New South Wales is addressed in Chapter 5. See Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW), which commenced operation on 21 June 2012. See CB v DPP (NSW) (2014) 240 A Crim R 45, which is referred to in Chapter 4, and Chen v R [2013] NSWCCA 116. R v Kitchener (1993) 29 NSWLR 696 per Carruthers J at 703. Also, see Banditt v The Queen (2005) 224 CLR 262, analysed in Chapter 6. Note that in South Australia there is a statutory definition of ‘reckless indifference’ in relation to sexual offences in s 47 Criminal Law Consolidation Act 1935 (SA) analysed in Chapter 6. This case and the principles relating to criminal negligence manslaughter are discussed in more detail in Chapter 7. See also in this regard the later cases of R v McConnell and Ors [1977] 1 NSWLR 714 and R v Le Brun [1991] 4 All ER 673. Further, see Kourakis J’s (as he then was) analysis of alternative explanations of Thabo Meli in the South Australian case of R v Kageregere [2011] SASC 154, [122]–[124]. The term ‘battery’ in this context refers to the application of force to a person without their consent; see Chapter 5 for more detailed consideration of the law of assault. See Chapter 8 for a detailed consideration of the law relating to ‘larceny’ offences. Note that in South Australia and Victoria the common law offence of ‘larceny’ has been replaced by the statutory offence of ‘theft’. Leichhardt Municipal Council v Hunter (2013) 83 NSWLR 637, 640; Caralis v Smyth (1988) 34 A Crim R 193.

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33 In this regard, note carefully the general principles from He Kaw Teh v The Queen (1985) 157 CLR 523, particularly per Brennan J at 582. See also State Rail Authority v Hunter District Water Board (1992) 65 A Crim R 101 and Australian Iron & Steel Pty Ltd v ­Environment Protection Authority (No 2) (1992) 29 NSWLR 497. 34 See p 36 under the heading ‘Burden of proof’ for a discussion of the evidential burden. 35 See Hickling v Laneyrie (1991) 21 NSWLR 730 and Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120. 36 At that time the offence was found in s 4E(7) of the Motor Traffic Act 1909 (NSW). 37 See Children (Criminal Proceedings) Act 1987 (NSW) s 5; Children, Youth and Families Act 2005 (Vic) s 344; and Young Offenders Act 1993 (SA) s 5. 38 Traditionally this was known as the ‘mischievous discretion’; see Sir Matthew Hale, The History of the Pleas of the Crown, Vol 1 (1736) 26. 39 See JM (A Minor) v Runeckles (1984) 79 Cr App R 255; M (1977) 16 SASR 589; R v CRH (Unreported, NSWCCA, 18 December 1996); R v ALH (2003) 6 VR 276; BP v R; SW v R [2006] NSWCCA 172; and RH v DPP (NSW) [2013] NSWSC 520. 40 For recent perspectives on the operation of the doli incapax presumption see GW v The Queen (2015) 20 DCLR (NSW) 236 and Thomas Crofts, ‘A Brighter Tomorrow: Raise the Age of Criminal Responsibility’ (2015) 27 Current Issues in Criminal Justice 123. See also Gregor Urbas, ‘The Age of Criminal Responsibility’ (2000) Trends & Issues in Crime and Criminal Justice 181 and Lisa Bradley, ‘The Age of Criminal Responsibility Revisited’ (2003) 8(1) Deakin University Law Review 71. 41 See Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 for an example of the application of both methods. 42 Being vicariously liable means liability is imposed on the corporation for the conduct of another person because of the legal relationship that exists between them, such as employer and employee. 43 See Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. 44 Woolmington v DPP [1935] AC 462 per Lord Sankey LC at 480–2 where this is ­described as the ‘one golden thread’ running ‘throughout the web of English ­criminal law’. 45 See R v Reeves (1992) 29 NSWLR 109 at 117. Also, see Cassell v The Queen (2000) 201 CLR 189 per Kirby J at 194 where his Honour strongly emphasised that the fundamental principle of the criminal law is that ‘the burden rests on the prosecution to prove beyond reasonable doubt every element necessary to establish the criminal offence charged’. 46 See Chugg v Pacific Dunlop (1990) 95 ALR 481 for a useful illustration of the two components of the burden of proof and where an evidential burden might be placed as far as ultimate satisfaction of the legal burden by the party who bears that burden. See also Bronitt and McSherry, Principles of Criminal Law (3rd edn, 2010) at 137 for a useful diagram of the distinction between the legal and evidential burdens of proof. 47 May also be referred to as establishing a ‘prima facie case’ in relation to a ­particular ­issue. 48 See, for example, Drug Misuse and Trafficking Act 1985 (NSW) s 29 in relation to deemed supply of a traffickable quantity of prohibited drugs where, once it is ­established that the accused possessed a certain weight or amount of prohibited drugs, the legal burden shifts to the accused to establish on the balance of probabilities

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49

50 51 52 53 54 55 56 57 58

59

that he or she did not possess those drugs for the purposes of supply. See Chapter 9 for a full discussion of the law relating to ‘deemed supply’ of prohibited drugs. Note that in South Australia and Victoria the equivalent ‘mental incompetence’ or ­‘mental impairment’ defence is now in statutory form: see Criminal Law Consolidation Act 1935 (SA) s 269C, and Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20. See Chapter 11 for a full discussion of this defence. See Chapter 11 for a full discussion of these defences, including that the accused will usually need to discharge an ‘evidential burden’. See, for example, Taiapa v The Queen (2009) 240 CLR 95; Braysich v The Queen (2011) 243 CLR 434; and The Queen v Khazaal (2012) 246 CLR 601. C R Williams, ‘Placing the Burden of Proof’ in E Campbell and L Waller (eds), Well and Truly Tried (1982) 273. See the Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 1929 (SA); and the relevant common law. Andrew Palmer, Proof: How to Analyse Evidence in Preparation for Trial (3rd edn, 2014) 18. See ibid at 25 for a useful checklist of the categories in an event chronology. See, for example, the Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) s 55 for a definition of ‘relevant evidence’. See, for example, the Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) Dictionary Part 1 for a definition of ‘probative value’. See LexisNexis Concise Australian Legal Dictionary (4th edn, 2011) 303. Also, see John Anderson and Anthony Hopkins, Uniform Evidence Law Guidebook (2014) 10–11 and Chapters 1 and 2 generally for useful material about basic evidentiary concepts, modes and sources of proof. See, for example, the Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) Dictionary Part 1 for an extensive definition of ‘document’.

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THE CRIMINAL JUSTICE SYSTEM AND ­CRIMINAL PROCEDURE COVERED IN THIS CHAPTER In this chapter, you will learn about: • the court system and types of criminal offences • the roles of the police, prosecution and defence • pre-trial procedures • summary proceedings in magistrates’ courts • trial procedure in intermediate and Supreme Courts • appeals—appellate avenues and powers of courts.

STATUTES TO REMEMBER Criminal Procedure Act 1986 (NSW) Criminal Procedure Act 2009 (Vic) Summary Procedure Act 1921 (SA) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Crimes Act 1958 (Vic) ss 458–470 Magistrates’ Court Act 1989 (Vic) Summary Offences Act 1953 (SA) Parts 15, 17, and 18 Crimes (Forensic Procedures) Act 2000 (NSW) Criminal Law (Forensic Procedures) Act 2007 (SA) Bail Act 2013 (NSW) Bail Act 1977 (Vic) Bail Act 1985 (SA) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Magistrates Court Act 1991 (SA) ss 42–43 Criminal Law Consolidation Act 1935 (SA) ss 271–273, 282–289, Part 11

INTRODUCTION Moving from the fundamentals of criminal responsibility and proof of offences, we turn in this chapter to examining the essential framework of the adversarial criminal justice system and the pre-trial and trial procedures in criminal cases. There is a pivotal correlation between the substantive criminal law and criminal procedure,

CHAPTER 3: THE CRIMINAL JUSTICE SYSTEM AND CRIMINAL PROCEDURE

which was highlighted in Chapter 1.1 The processes by which a person enters the criminal justice system, including the investigative methods and procedures used in gathering evidence, have a clear impact on whether a substantive offence can be proved against that person. It is important that you have a good understanding of this interrelationship, and it will be illustrated at various points throughout this book. This chapter begins with a description of the criminal court hierarchy and also provides a framework of the types of offences. A brief overview of the roles of the police, prosecution and defence in the criminal justice system follows. Our focus then turns to an examination of the all-important pre-trial procedures, namely arrest, search and seizure, detention for questioning, identification procedure, establishment of a crime scene, taking of forensic samples and bail. Following this we consider some practical aspects of the trial process in both courts of summary jurisdiction and the higher level courts. Finally, the various avenues of appeal in criminal cases are outlined.

THE COURT SYSTEM AND TYPES OF ­CRIMINAL ­OFFENCES Looking at the structure and hierarchy of the criminal courts in the Australian court system, it is first important to understand that courts have (1) an original jurisdiction; (2) an appellate jurisdiction; or (3) both. The original jurisdiction of a court is that which allows for certain proceedings to be commenced before it. All criminal charges are commenced in the Local Court in New South Wales, and in the Magistrates’ Court in South Australia and Victoria. 2 The magistrates who preside over these courts have jurisdiction to deal with certain criminal offences to finality, but other offences must be sent on to the higher courts after a preliminary enquiry as to the sufficiency of evidence available to establish those offences. The higher courts then have an original jurisdiction to deal with those matters by way of trial. The basic dichotomy of offences into summary and indictable offences largely determines the jurisdictional limits of magistrates. 3 The appellate jurisdiction of a court involves the judicial officer in a review or rehearing of decisions or orders made by courts lower in the hierarchy. For example, in New South Wales there is an avenue of appeal against the decision of a magistrate to a judge in the District Court and, similarly, in Victoria, from a magistrate to a judge of the County Court. The final avenue of appeal in criminal matters in Australia is by special leave to the High Court of Australia, which is comparatively rare.4 Figure 3.1 illustrates the criminal court hierarchy in the Australian common law jurisdictions. The lower criminal courts are called Local Courts in New South Wales

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and Magistrates’ Courts in Victoria and South Australia. These courts are often given the generic label ‘courts of summary jurisdiction’, as criminal cases are decided following a summary hearing procedure presided over by a magistrate sitting alone. The largest percentage of criminal cases are finalised at this level in the hierarchy. 5 The Children’s Courts in Victoria and New South Wales and the Youth Courts in South Australia are a specialist and separate jurisdiction that hears and determines criminal cases involving defendants who are aged under eighteen years. The criminal jurisdiction of these courts extends over a broader range of offences than those dealt with in relation to adult defendants in the Local or Magistrates’ Courts. 6 The senior judicial officer or president of these courts is a District Court or County Court judge and the other judicial officers are magistrates or children’s magistrates. Finally, at the lower level are Coroner’s Courts, which, in each jurisdiction, conduct inquests into suspicious deaths and inquiries into fires and explosions. The coroners who preside over these courts do not deal with criminal matters to finality but, rather, have powers to make recommendations for the relevant prosecution agency to consider laying a charge against a certain person or persons in relation to a death or fire. Coroners have powers to make other broad-ranging recommendations resulting from an inquest or fire inquiry.7 FIGURE 3.1 The criminal court structure—common law jurisdictions High Court of Australia Court of Criminal Appeal (NSW) Court of Appeal (Vic) Full Court (SA) Supreme Court (NSW, Vic, SA) District Court (NSW, SA) County Court (Vic) Coroner’s Court (NSW, Vic, SA)

Local Court (NSW) Magistrates’ Court (Vic & SA)

Children’s Court (NSW, Vic) Youth Court (SA)

At the intermediate level of the criminal court hierarchy is the District Court in New South Wales and South Australia, and the County Court in Victoria. These courts conduct trials in more serious criminal cases involving indictable offences. 8 The trials are presided over by a judge, who usually sits with a jury of twelve persons. There are provisions in New South Wales and South Australia for trials in these courts to be conducted by a judge sitting alone. In New South Wales and Victoria, these courts

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also have an appellate jurisdiction in which judges hear and determine appeals against decisions made by magistrates in the lower courts. The Supreme Court is the highest level of the criminal court hierarchy in each state jurisdiction. This court, being a superior court of unlimited jurisdiction, has an inherent jurisdiction to deal with all criminal matters. However, as courts lower in the hierarchy deal with the vast bulk of criminal offences, the Supreme Court hears only the most serious criminal cases, such as trials for murder and large-scale commercial drug trafficking offences. These trials are conducted by a judge, usually sitting with a jury. There is a significant appellate jurisdiction at this level. In South Australia, Supreme Court judges hear appeals from the decisions of magistrates. In each jurisdiction, there is a Court of Appeal (Court of Criminal Appeal in New South Wales, Full Court in South Australia) and, depending on the particular legislative provisions, usually three judges will sit on this court to hear and determine appeals against decisions made in the intermediate-level courts and by single judges (and juries) in the Supreme Court. At the pinnacle of the criminal court hierarchy is the High Court of Australia, which is a national court that hears appeals in criminal cases from the state Supreme and appeal courts. The High Court does not have a trial or original jurisdiction in criminal matters. Appeals to the High Court are heard by five judges, or sometimes a full court of seven, after a process where a minimum of two judges determine applications for special leave to appeal—that is, whether the case is suitable for hearing by a full appellate court.

TYPES OF CRIMINAL OFFENCES Turning now to the types of criminal offences that can be tried by the different courts in the hierarchy, we return to the dichotomy identified earlier in relation to the original jurisdiction of a criminal court. At common law, crimes were generally classified as misdemeanours and felonies. These were distinguished on the basis of the objective gravity of the offences, with a felony being the more serious offence. Although these classifications have influenced the contemporary division of seriousness between offences, their archaic labels are no longer used. As Table 3.1 illustrates, all the common law jurisdictions now use a classification system of ‘summary’ and ‘indictable’ criminal offences, which, in addition to considerations of the seriousness of a particular crime, uses the mode of trial as an important feature of classification. Procedures are available in all jurisdictions for less serious indictable offences to be tried summarily in the lower courts.

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TABLE 3.1 Types of criminal offences in the common law jurisdictions NEW SOUTH WALES

VICTORIA

SOUTH A ­ USTRALIA

Types of criminal offences

•• Summary •• Minor indictable •• Serious indictable Crimes Act 1900 (NSW) s 4; Interpretation Act 1987 (NSW) s 21

•• Summary •• Indictable •• Serious indictable Crimes Act 1958 (Vic) ss 2B, 322C, 325(6)

•• Summary •• Minor indictable •• Major indictable Summary Procedure Act 1921 (SA) s 5

Indictable offences triable summarily

•• Available for offences as specified unless positive election made for trial on indictment Criminal Procedure Act 1986 (NSW) ss 260–263, Sch 1 Table 1 and Table 2

•• Available for offences where court considers summary hearing appropriate and accused consents Criminal Procedure Act 2009 (Vic) ss 28, 29 and Sch 2

•• Available for minor indictable offences unless positive election made for trial on indictment9 Summary Procedure Act 1921 (SA) s 103

Summary offences are less serious types of offences, which are prosecuted and determined in courts of summary jurisdiction. They include most regulatory offences such as those relating to public order10 and traffic violations. In both New South Wales and South Australia, a summary offence is one where the maximum penalty provided is imprisonment for two years or less.11 Indictable offences are objectively more serious offences, which, following a preliminary or committal hearing in a Local Court or Magistrates’ Court, are tried in an intermediate level or superior court by a judge and jury. In all common law jurisdictions, indictable offences are subdivided into two categories depending on the maximum penalty available for an offence. Minor indictable offences in South Australia and New South Wales are those where the maximum term of imprisonment available does not exceed five years.12 Other indictable offences are labelled ‘serious indictable’ in New South Wales and ‘major indictable’ in South Australia. A ‘serious indictable offence’ in Victoria is defined in s 325(6) of the Crimes Act 1958 (Vic) to be an indictable offence punishable with imprisonment for life or a term of five years or more. Apart from that categorisation, there is provision in each jurisdiction for various indictable offences to be dealt with summarily in a Local Court or Magistrates’ Court.

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In New South Wales, there are two tables of indictable offences contained in Sch 1 to the Criminal Procedure Act 1986 (NSW), setting out various offences that are to be dealt with summarily by a Local Court unless a party elects to have the offences heard and determined on indictment in the District Court. Table 1 offences are to be dealt with summarily unless either the prosecuting authority or the accused elects to have the offences heard and determined on indictment.13 Offences in Table 1 include dangerous driving other than where a death is occasioned; reckless wounding or infliction of grievous bodily harm; and breaking, entering and stealing where the value of the property stolen does not exceed $60,000. Table 2 offences are to be dealt with summarily unless the prosecuting authority otherwise elects.14 Examples of offences in Table 2 are assault, larceny where the value of property does not exceed $5000, damage to property not exceeding $5000, supplying less than the prescribed small quantity of prohibited drugs, and minor indecent assaults. All other indictable offences, such as murder, armed robbery, sexual assault and commercial drug trafficking, must be dealt with by the District Court or Supreme Court. In South Australia, all minor indictable offences as defined in s 5(3) of the Summary Procedure Act 1921 (SA), including where a maximum sentence of imprisonment does exceed five years but the damage to property or dishonesty involved does not exceed $30,000, indecent assault on a person over the age of fourteen years, and recklessly causing harm to another person, are to be dealt with summarily unless the defendant elects for trial in a superior court. 15 In Victoria, there is a wide range of indictable offences that may be heard and determined summarily by the Magistrates’ Court if the court considers it to be appropriate and the accused consents to a summary hearing. In determining the appropriateness of summary disposal, the court must have regard to the matters set out in s 29(2) of the Criminal Procedure Act 2009 (Vic), including the ‘seriousness of the offence’ and the ‘adequacy of sentencing orders available to the court’. The range of indictable offences triable summarily is set out in s 28 and Sch 2 of the Criminal Procedure Act 2009 (Vic). Generally, any indictable offence that is punishable by up to ten years’ imprisonment or a fine not exceeding 1200 penalty units or both can be heard and determined summarily. The decision to have indictable offences dealt with summarily is important for a defendant as, although they forgo the option of trial by jury, the benefit is in the lower maximum penalties that can be imposed by magistrates after a summary hearing. Magistrates in all jurisdictions have limited sentencing powers, in that the penalty imposed for an offence cannot exceed two years’ imprisonment in New South Wales and Victoria, or five years’ imprisonment in South Australia.16 Further, magistrates in all jurisdictions have the power to impose consecutive sentences of imprisonment for multiple offences; in New South Wales and Victoria, magistrates can impose

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consecutive sentences of imprisonment up to a maximum of five years, 17 while in South Australia, the maximum is ten years’ imprisonment.18

THE ROLES OF THE POLICE, PROSECUTION AND ­DEFENCE THE POLICE The police have often been described as the ‘gatekeepers’ of the criminal justice system.19 In discharging their important function of investigating crimes so that alleged criminals may be brought to trial,20 police officers have significant discretion that is not subject to legislative regulation. At the threshold of the criminal justice process, police make decisions about who to investigate, what evidence should be gathered, whether an arrest should be made and, if so, what charges might be laid against an individual. In New South Wales, for instance, the police force has established a ‘Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)’, which provides guidance to police officers for carrying out their various investigative and other duties. This code of practice has been shaped by the legislative framework that has gradually been built up in relation to the exercise of police powers and responsibilities, most notably by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). In each jurisdiction, police prosecutors have responsibility for the conduct of a significant number of prosecutions before magistrates in Local Courts and Magistrates’ Courts, particularly those involving summary offences.

THE PROSECUTION21 As noted in Chapter 1,22 the common law jurisdictions operate under an adversarial system of criminal justice. Apart from the conduct of prosecutions of summary offences by police prosecutors, in each common law jurisdiction there is an Office of the Director of Public Prosecutions (DPP), which is responsible for the conduct of prosecutions of indictable matters in the intermediate and higher courts. Solicitors within the DPP also conduct committal and preliminary hearings of indictable matters before magistrates, as well as some prosecutions of indictable offences that can be heard and determined summarily. Crown prosecutors, prosecutors and solicitors from the DPP present the prosecution case in trials of indictable matters in the District, County and Supreme Courts. In each jurisdiction, the DPP has a set of guidelines incorporating the policies and procedures under which criminal prosecutions are conducted.23 Importantly, these guidelines set out the factors to be taken into account in instituting or continuing a criminal prosecution before the courts, including the sufficiency of the evidence available, whether there is a reasonable prospect of

CHAPTER 3: THE CRIMINAL JUSTICE SYSTEM AND CRIMINAL PROCEDURE

conviction, and the public interest in proceeding with the case.24 Also, those solicitors and barristers who are prosecutors are subject to the conduct and practice rules of their professional association in each jurisdiction.25

THE DEFENCE A person accused of a crime is their own representative in court unless they wish to instruct and retain a lawyer. Some defendants will be entitled to legal aid to fund their legal representation. There are Legal Aid or Legal Services Commissions in New South Wales,26 Victoria27 and South Australia,28 and the schemes that fund the legal representation of defendants in criminal cases in each jurisdiction are subject to various tests, including the financial means of the defendant and the merits of the case. Otherwise, legal representation must be self-funded as there is no absolute right to legal representation guaranteed by the Constitution or any statute in Australia. The High Court has recognised that although a person charged with a criminal offence has no enforceable right to legal representation, such representation is almost always essential for a fair trial. The principle endorsed by the High Court in Dietrich v The Queen (1992) 177 CLR 292 is encapsulated in the following statement by Mason CJ and McHugh J as part of the majority (at 315): the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation … [is that] in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.

This common law principle from Dietrich has been considered and applied in a number of subsequent cases,29 with concepts including ‘fault’, ‘serious offence’ and ‘exceptional circumstances’ clarified to some extent. Generally, it is the position that legal representation will be a prerequisite to a fair trial of an indictable criminal offence at the intermediate level or Supreme Courts if an accused person seeks such representation and cannot afford it although their conduct in all the circumstances has been reasonable. In Victoria, s 197 of the Criminal Procedure Act 2009 (Vic) empowers a court to order Victorian Legal Aid to provide legal representation to an accused being tried on indictment if the court is satisfied that ‘it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented’ and the accused is unable to afford the full cost of private legal representation.30 In South Australia, the Criminal Law (Legal Representation)

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Act 2001 (SA) has established a legislative scheme to regulate legal representation of defendants in criminal cases to replace and modify the common law as stated in Dietrich. This legislation is intended to avoid disruptions to trials based on applications for adjournment due to lack of legal representation, and implements a scheme as to the basis upon which the Legal Services Commission is to provide legal assistance to defendants in criminal proceedings.31

PRE-TRIAL PROCEDURES A major role of the police is interacting with suspects, who may become defendants in a criminal case. The regulation of pre-trial procedures in this interaction between the police and suspects is an integral part of the investigation and evidence-gathering stage of the criminal process. Table 3.2 gives an overview of the main pre-trial procedures and the relevant statutory provisions in each common law jurisdiction that regulate these procedures. TABLE 3.2 Pre-trial procedures in the common law jurisdictions PRE-TRIAL PROCEDURE

NEW SOUTH WALES

VICTORIA

SOUTH ­AUSTRALIA

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

CA = Crimes Act 1958 (Vic) MCA = Magistrates’ Court Act 1989 (Vic)

SOA = Summary Offences Act 1953 (SA) CLCA = Criminal Law Consolidation Act 1935 (SA)

Arrest

ss 99–100 (without warrant) s 101 (warrant)

ss 458–461 CA (without warrant) ss 57–67 MCA (warrant)

s 75 SOA; s 271 CLCA (without warrant) s 273 CLCA (warrant)

Search and seizure

ss 20–34 (without warrant) ss 47–50 (warrant)

Common law (without warrant) s 465 CA ss 75–78 MCA (warrant)

s 81 SOA (without warrant) s 67 SOA (warrant)

Detention for questioning

ss 114–132

ss 464–464J CA

ss 74C–74G, 78, 79A, 82, 83A SOA

Identification particulars

ss 133–138C

ss 464K–464Q CA

s 81(4) SOA

Crime scenes

ss 88–98

N/A

N/A

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PRE-TRIAL PROCEDURE

NEW SOUTH WALES

VICTORIA

SOUTH ­AUSTRALIA

Forensic samples

Crimes (Forensic Procedures) Act 2000 (NSW)

ss 464, 464R–464ZL CA

Criminal Law (Forensic Procedures) Act 2007 (SA)

Bail

Bail Act 2013 (NSW)

Bail Act 1977 (Vic)

Bail Act 1985 (SA)

In the following sections, each pre-trial procedure will be described, with the New South Wales procedures used as an exemplar. Any differences in the procedures operating in the other jurisdictions will be briefly noted.

ARREST The nature and significance of arrest is usefully outlined by Feld, Hemming and Anthony: Arrest is the process of taking a person into custody for the purpose of commencing criminal proceedings against the person. It is an interference with a person’s liberty and must be justified by law. It has a pivotal significance in the pre-trial criminal justice process. When effected by the police, an arrest may activate a number of coercive investigative powers … Concurrently, it imposes certain obligations on the police … The occurrence and circumstances of an arrest—whether an arrest has occurred at all, whether it has occurred lawfully, and whether it has been lawfully maintained—have implications for suspects’ rights, including the right to resist, and for the admissibility at trial of any evidence obtained during the subsistence of the arrest.32

As Table 3.2 indicates, the power of police officers to arrest persons arises in two circumstances. First, a police officer may be authorised to arrest a person by a warrant. A warrant is a document that may be issued under statute, signed by an authorised officer, usually a judge or magistrate, for the arrest of a particular person, and gives a police officer power to arrest that person. Second, police officers have powers to arrest persons without a warrant when a person is in the act of committing or has just committed any offence. This power of arrest extends to persons other than a police officer in all jurisdictions.33 Further, where a police officer ‘suspects on reasonable grounds’ that a person is committing or has committed any offence, the person can be arrested without a warrant. In New South Wales, s 99(1)(b)(i)–(ix) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) sets out principles to be taken into account in deciding whether to make an arrest without a warrant.34 Essentially the coercive power of arrest may be used where police are

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satisfied that it is reasonably necessary to ensure that a person will appear before the court in respect of an offence, to prevent a person escaping police or the location of an offence, to enable a person’s identity to be established, to prevent repetition or continuation of an offence, to prevent harassment or interference with another person, to obtain property in the possession of the person connected with an offence, to preserve or prevent fabrication of evidence in respect of an offence, or to preserve the safety and welfare of any person (including the person arrested). There are safeguards that police officers in New South Wales must apply when exercising the power of arrest under LEPRA s 202(1)(a)–(c); that is, they must provide evidence they are a police officer if not in uniform, provide their name and place of duty, and inform the person of the reason for exercising the power of arrest.35 Police can use reasonable force in making an arrest and this is judged both by what the officer believes is necessary and the objective circumstances existing at the time of arrest.36 Generally, those carrying out an arrest should make it clear by words and/or conduct that the person ‘is not free to leave if [s/]he chooses’. 37 Persons can voluntarily choose to assist police with their enquiries, but that is on the basis that they are not detained in police custody and may leave when they wish to do so. Accepting an invitation to assist police with their enquiries does not amount to an arrest, and it is important to make the distinction as those voluntarily assisting police with their enquiries do not have the same rights as those arrested and detained for questioning.38 In The Queen v S and J (1983) 32 SASR 174, it was emphasised by White J (at 189) that police officers must do two things when substantial ambiguity arises as to whether a person is under arrest: ‘they must inform the suspect that he is not under arrest; and second, they must also inform him that he is free to refuse to accompany them, that is, that he is free to go’.

SEARCH AND SEIZURE Once a person is arrested for an offence and they are in lawful custody, police have the power to search that person and detain anything found through the search. This position applies at common law and where regulated by statutory provisions. There are restrictions in New South Wales as to the types of searches that can be carried out, and an authorised search is usually restricted to a frisk search or ordinary search.39 A strip search can only be carried out if there are reasonable grounds for a suspicion that such a search is necessary, including the seriousness and urgency of the circumstances.40 In South Australia, restrictions apply to the carrying out of an ‘intrusive search’ or an ‘intimate search’ on a person in lawful custody. 41 There is also provision in New South Wales and Victoria for the issue of search warrants by a magistrate or an authorised officer where the police have reasonable grounds for believing that there is, or within seventy-two hours will be, anything connected with a particular indictable or other specified offence in or on any premises or place.42

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In South Australia there is provision for general search warrants under s 67 of the Summary Offences Act 1953 (SA), which gives a police officer the power to enter and search any premises where they have reasonable cause to suspect that: 67 (4)(a) (i)  an offence has recently been committed, or is about to be ­committed; or (ii) there are stolen goods; or (iii) there is anything that may afford evidence as to the commission of an offence; or (iv) there is anything that may be intended to be used for the purpose of committing an offence.

Police officers may use reasonable force when executing a search warrant and may seize anything specified in the warrant and anything else found that the police officer believes on reasonable grounds is connected to any offence.43

DETENTION FOR QUESTIONING There are provisions in each jurisdiction to allow the police to detain for questioning a person who is under arrest or in custody for the purpose of investigating whether they have committed the offence for which they were arrested.44 In allowing this questioning to take place there are a number of procedural safeguards and rights in relation to the arrested person. First, in New South Wales, an independent police officer must be appointed as a custody manager who has responsibility for cautioning the arrested person regarding their rights and for ensuring their proper treatment while in custody. This includes informing the arrested person of their right to silence, access to legal assistance, provision of an interpreter if necessary, rights to medical attention and reasonable refreshments and facilities. 45 Second, the investigating police have power to detain the arrested person for the purpose of investigating whether the person committed the offence for which they were arrested. Within the investigation period the person must be either released (unconditionally or on bail) or taken before a justice, magistrate or court. The investigation period runs from the time the person is arrested ‘to a time that is reasonable having regard to all the circumstances’, but must not exceed the maximum investigation period, which is four hours or a longer period if extended by the issue of a detention warrant. 46 Factors that are to be taken into account in determining what is a reasonable time include the person’s age, mental capacity and condition; the number, seriousness and complexity of the offences under investigation; and the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation. A detention warrant may be issued by an authorised officer after application from an investigating police officer; this can extend the maximum investigation period by up to a further eight hours.47 The main aspects of the scheme in Victoria are very similar to the New South Wales procedures. However, in Victoria, persons can be detained for questioning

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for a ‘reasonable time’ without any specific time limit. The determination must be made having regard to various matters set out in s 464A(4) of the Crimes Act 1958 (Vic), which are similar to the factors used in the New South Wales legislation. In South Australia, a person ‘apprehended without warrant on suspicion of having committed a serious offence’ may be detained for four hours, ‘or such longer period (not exceeding eight hours) as may be authorised by a magistrate’. 48 Where a person suspected of committing an indictable offence is interviewed by police officers while in custody, there are provisions in each jurisdiction mandating that the interview be electronically recorded. This is particularly significant if the suspect makes any admissions or confessions as to the commission of an offence and it is sought to adduce that evidence in court at a later stage. 49

IDENTIFICATION PARTICULARS A police officer may take all particulars necessary to identify a person over fourteen years of age who is in lawful custody for any offence, including the person’s photograph, fingerprints and palm-prints.50 In relation to children under fourteen years of age, an order must be obtained from the Children’s Court under s 136 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for the taking of a child’s photograph, fingerprints and palm-prints. In South Australia, the powers of police officers in relation to identification particulars of persons in lawful custody extend beyond taking photographs and fingerprints to making a recording of a person’s voice and requesting a sample of their handwriting. These powers, however, may not be exercised unless the person has been charged with an offence or authorisation has been obtained from a magistrate.51 In Victoria, identification procedures are restricted to fingerprinting and fingerscanning of adults and children aged fifteen years and over,52 although the fingerprints of children aged ten years or more but under fifteen years can be taken either with the consent of both the child and a parent or guardian, or by order of the Children’s Court.53 The fingerprints of children under the age of ten years must not be requested or taken.54

CRIME SCENES A police officer can establish a crime scene under Part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) where the officer believes it is reasonably necessary to do so to preserve evidence at the premises, and the matter concerns (1) an offence in relation to a traffic accident resulting in death or serious injury; or (2) a serious indictable offence. The crime scene can be established for no more than three hours unless a crime scene warrant is obtained from an authorised officer.55 Once a crime scene is established, police officers have significant powers in relation to the crime scene, including preventing persons from entering the area,

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interfering with or removing items, photographing or otherwise recording a crime scene, and digging up or removing walls or linings.56

FORENSIC SAMPLES There is a scheme for obtaining forensic samples from suspects in each jurisdiction. In New South Wales, the procedures apply to persons suspected of committing ‘an offence’, whereas in Victoria it must be ‘an indictable offence’ and in South Australia it must be ‘a serious offence’.57 In New South Wales, it has been held that the procedures apply only in relation to obtaining samples from the person of a specific individual.58 The taking of samples under the New South Wales and Victorian legislation involves ‘intimate’ and ‘non-intimate’ forensic procedures. 59 ‘Intimate’ samples and procedures include most forms of internal examination plus external examination of genital and anal areas and breasts, and the taking of blood, saliva and pubic hair. ‘Non-intimate’ samples and procedures involve other forms of external examination, including a swab or washing from any external part of the body other than genital and anal areas and breasts, plus the taking of a sample of hair or nails, and the taking of handprints and fingerprints. In South Australia, there are three categories: ‘simple identity procedure’, ‘forensic procedure’ and ‘intrusive forensic procedure’60 with the latter two corresponding closely to ‘non-intimate’ and ‘intimate’ forensic procedures. A ‘simple identity procedure’ is the taking of handprints or fingerprints or taking forensic material by buccal swab or finger-prick for the purpose of obtaining a DNA profile. In New South Wales and Victoria, these procedures can be conducted after obtaining ‘informed consent’61 from the suspect. If the suspect does not consent, an order can be made by a senior police officer in relation to carrying out non-intimate forensic procedures.62 An order of a magistrate is required for intimate forensic procedures to be carried out where the suspect does not consent, is not under arrest for an offence or is a child.63 In South Australia, orders authorising forensic procedures on a suspect are made by a senior police officer—that is, one of or above the rank of inspector.64 The legislation in each jurisdiction also contains provisions relating to how forensic procedures are to be carried out, the admissibility of evidence obtained from forensic procedures, and the supply of forensic material to the national DNA database system.

BAIL Bail is the means by which a person charged with a criminal offence is released from custody pending a hearing of the matter in court. Bail is consistent with the principle that the accused is innocent until proven guilty, because it facilitates the preparation of a defence. There are statutory provisions regulating the granting of bail in each common law jurisdiction. Essentially, once a person has been charged with

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an offence, bail can be granted by a police officer who is of or above the rank of a sergeant or who is the officer in charge of the station at the time.65 A determination must be made as to whether bail is dispensed with, granted unconditionally, granted subject to conditions or refused. Once the person charged with an offence appears before a court, a bail application can be made; or, if bail has been granted by a police officer, it may be continued by the court. The decision-making process relating to bail in New South Wales was substantially altered by the enactment of the Bail Act 2013 (NSW) and the Bail Amendment Act 2014 (NSW).66 Key features of bail decisions are illustrated in flow charts in s 16 of the Bail Act 2013 (NSW), which are reproduced as Figures 3.2 and 3.3. Bail decisions in New South Wales now potentially involve a two-step process.67 First, an accused charged with a ‘show cause offence’ as defined by s 16B of the Bail Act 2013 (NSW) must be refused bail unless they can show cause why their detention is not justified. 68 Second, the bail authority must consider whether there is an unacceptable risk that the accused will (1) fail to appear at any proceedings for the offence; (2) commit a serious offence while on bail; (3) endanger the safety of victims, individuals or the community; or (4) interfere with witnesses or evidence. Bail must be refused if the bail authority is satisfied that there is an unacceptable risk; conversely, bail must be granted (either subject to conditions or unconditionally) or dispensed with or the accused released if there are no unacceptable risks.69 The conclusion that an unacceptable risk exists must be preceded by an assessment of ‘bail concerns’, which essentially mirror the unacceptable risks outlined earlier.70 Bail concerns are assessed with reference to a range of matters set out in s 18, including the accused’s background (encompassing their criminal history, circumstances and community ties); the nature and seriousness of the offence; the strength of the prosecution case; whether the accused has a history of compliance or non-compliance with bail requirements or court orders; and the need for the accused to be free to prepare for their appearance in court or to obtain legal advice. FIGURE 3.2 Flow Chart 1 Show cause requirement Has the accused person shown cause why their detention is not justified?

Yes

No

Apply unacceptable risk test in Figure 3.3

Refuse bail

CHAPTER 3: THE CRIMINAL JUSTICE SYSTEM AND CRIMINAL PROCEDURE

FIGURE 3.3 Flow Chart 2 Unacceptable risk test Does the accused person present an unacceptable risk (taking into account the s 18 matters, including s 18 (1) (p))?

Yes

Refuse bail

No

Are there any conditions that must be imposed to address any bail concerns in accordance with s 20A?

Yes

No

Conditional release

Unconditional release

The approach to bail decisions in Victoria and South Australia displays some similarities with the process outlined earlier in relation to New South Wales. When considering a bail application, the court or bail authority must take into account any statutory presumptions relating to bail or statutory directions as to the refusal of bail. Various provisions in the Bail Act 1977 (Vic) create presumptions against bail or require the refusal of bail.71 In South Australia, there is a presumption against bail for ‘prescribed applicants’ unless they establish ‘special circumstances’ justifying release on bail.72 The court or bail authority must then consider the statutory criteria governing the grant of bail; both the Victorian and South Australian legislation address similar issues to those identified in relation to the assessment of bail concerns in New South Wales above.73 In all jurisdictions, bail may be granted subject to specific conditions, including regular reporting to police, residing at a specified address, surrendering a passport, and arrangements where the accused or a surety lodges security or agrees to forfeit a sum of money if the accused does not appear at court in answer to their bail undertaking or agreement.74 The higher courts have jurisdiction to review bail decisions made by lower courts and by police officers.75 It is an offence to fail to appear at court in answer to a bail undertaking or agreement.76

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SUMMARY PROCEEDINGS IN MAGISTRATES’ COURTS Criminal proceedings in each of the common law jurisdictions are initiated in the Local Court or Magistrates’ Court by the issue and filing of the following documents: •• New South Wales—court attendance notice: Criminal Procedure Act 1986 (NSW) s 172 •• Victoria—charge-sheet, summons, notice to appear: Criminal Procedure Act 2009 (Vic) ss 5–6, 14, 21 •• South Australia—complaint and summons (summary), information and charge (indictable): Summary Procedure Act 1921 (SA) ss 49, 57 and 101. In New South Wales, a police officer or public officer is authorised to commence proceedings by issuing, serving and filing a court attendance notice. 77 The court attendance notice must contain the information set out in s 175 of the Criminal Procedure Act 1986 (NSW), including a brief statement of the particulars of the alleged offence.78 Proceedings for a summary offence must be commenced within six months of when the offence was alleged to have been committed.79 There is provision for dealing with some criminal offences, such as ‘offensive language’ and minor ‘stealing’ offences, by way of penalty notice. The person who receives the penalty notice can either pay the prescribed penalty or elect to have the matter determined by a court.80 Filing a charge-sheet is the usual method of commencing a criminal proceeding in Victoria and the informant—ordinarily a police officer, but it can be any person— must commence proceedings for a summary offence within twelve months of when the offence is alleged to have been committed.81 There is no time limit on the commencement of proceedings for an indictable offence.82 Once a charge-sheet has been signed, a summons directing an accused to appear at a Magistrates’ Court on a specified date may be issued by a police officer or a public official and served on the accused.83 There are provisions in Victoria for issuing and serving a ‘notice to appear’ where a police officer or public official reasonably suspects that a person has committed a summary offence or an indictable offence that may be heard and determined summarily. Once served, a charge-sheet must be filed with a copy of the notice to appear in the Magistrates’ Court within fourteen days, as service of the notice is not sufficient to commence a proceeding.84 In South Australia, proceedings for summary offences are commenced when a complaint is made, reduced to writing and filed in the court.85 Details of the alleged offence must be set out in the complaint and then a summons is issued for the appearance of the defendant in court under s 57 of the Summary Procedure Act 1921 (SA). Proceedings for indictable offences are commenced when ‘an information’ is laid and filed in the court. This sets out the charges against a defendant, who

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must be provided with a copy of the information.86 In this jurisdiction there is also provision for the issue of an expiation notice for minor offences. The person issued with a notice can either pay the expiation fee specified or elect to be prosecuted and have the offence dealt with by a court.87 There are time limits for commencing prosecutions for a summary offence, which depend on whether it is an expiable offence and whether an expiation notice has been given.88 Once criminal proceedings have been commenced, the Local Courts and Magistrates’ Courts can hear and determine all those cases involving offences that are within the court’s summary jurisdiction. This may be after the accused enters a plea of guilty to the offences with which they have been charged or it may be after a summary hearing of the charges where the accused has entered a ‘not guilty’ plea. A guilty plea involves the accused admitting all the elements of the offence charged,89 which may be after charge-bargaining with the prosecution. Charge-bargaining involves an agreement to plead guilty following negotiations with either the prosecution or the police as to the final form of a charge. Depending on the nature of the charge, it usually involves the prosecution dropping the charge to a less serious alternative. For example, a plea of guilty may be accepted to ‘common assault’ rather than ‘assault occasioning actual bodily harm’ (in New South Wales). The acceptance of a plea to a lesser charge does not require judicial approval as long as that lesser charge represents a true alternative verdict and cannot be regarded as an abuse of the court’s process.90 In New South Wales and South Australia, there is a procedure enabling the defendant to make a written plea of guilty by completing the necessary form and returning it to the court.91 Once the prosecution has presented the facts of the offence and the defendant’s criminal record to the court, the main procedural feature of a guilty plea is the plea in mitigation. This is presented by or on behalf of the defendant with the aim of mitigating the objective seriousness of the offence and the penalty to be imposed on the defendant. A persuasive plea in mitigation will achieve the greatest degree of lenience possible in the circumstances. The sentencing process, including the relevant factors in sentencing following a guilty plea, is considered in detail in Chapter 12, and particular note should be taken of the legislative requirements for a discount on sentence when a guilty plea has been entered. In order to expose you to the routine workings of the criminal process, its organisation, principal participants, procedures and practices, it is suggested that you observe a Local Court or Magistrates’ Court in action. This experience should also enhance your understanding of the connections between the elements of a criminal offence, the decision to plead guilty and the sentencing procedure in the criminal justice system.

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SUGGESTED TASK Observation of a plea of guilty in a Local Court or Magistrates’ Court by placement with a prosecutor or legal practitioner Arrange with the prosecutor or a legal practitioner at your closest Local Court or ­Magistrates’ Court to attend court on a criminal list day to observe the procedure and presentation of a guilty plea before a magistrate. It would be beneficial to, if possible, have a short meeting with the prosecutor or legal practitioner before court and then attend court with them for observation. However, these processes are public and it is possible simply to attend and observe. Activities to complete in relation to one specific case observed during your court attendance are: 1 What did the prosecutor do and say in presenting the prosecution case? What documents were tendered to the court by the prosecutor and what relevant details did they contain for the conduct and outcome of the case? 2 What did the defence solicitor or defendant do and say in presenting the defence case? What documents, if any, were tendered to the court by the defence and what relevant details did they contain for the conduct and outcome of the case? 3 What did the magistrate say and do in dealing with the case? What was the outcome of this case? If a sentence was imposed, what comments did the ­magistrate make to the defendant when imposing sentence? 4 Make general observations of the running of the court list on the day you ­attended for the placement observation. After your attendance at court and observation of the relevant procedures and ­presentation of a plea of guilty, you should reflect on your experience by considering how the process and outcome in the case corresponds with your own understanding of ‘justice’. In doing so, consider this comment by Doreen McBarnet: Legal policy has established two tiers of justice. One, the higher courts, is for public consumption, the arena where the ideology of justice is put on display. The other, the lower courts, is deliberately structured in defiance of the ideology of justice … Almost all criminal law is acted out in the lower courts without traditional due process.92

From your observations, to what extent are McBarnet’s comments—that the lower courts operate within an ideology of triviality and without traditional due process—­accurate?

A ‘not guilty’ plea is made by a defendant when they deny responsibility for the commission of an offence with which they have been charged. If it is a summary offence or an indictable offence that can be heard and determined summarily, the case will be fixed for a summary hearing before a magistrate. The procedures for a

CHAPTER 3: THE CRIMINAL JUSTICE SYSTEM AND CRIMINAL PROCEDURE

summary hearing in each of the common law jurisdictions are set out in the following legislative provisions: •• New South Wales—Criminal Procedure Act 1986 (NSW) ss 183–202 (Chapter 4) •• Victoria—Criminal Procedure Act 2009 (Vic) ss 27–87 (Chapter 3) •• South Australia—Summary Procedure Act 1921 (SA) ss 61–69A. The essential procedural features of a summary hearing are: •• A brief of evidence containing all witness statements and other material to be relied on at hearing must be served by the prosecution on the defendant before the hearing date and within the time limits imposed by the legislation or court. •• At the court hearing, the prosecution case is presented through the oral evidence of witnesses and any exhibits tendered. At the end of the prosecution case, the question to be asked is: ‘Could the defendant lawfully be convicted?’ 93 •• If this question is answered ‘yes’, so that there is a case to answer, the defence case may then be presented. The defendant may give evidence or say nothing, and may call any witnesses to give oral evidence. •• At the close of the defence case, both the prosecution and defence may address the magistrate. •• The magistrate then makes a determination whether the offence is proved beyond reasonable doubt. If the offence is not proved, the defendant will be discharged. If the offence is proved, the magistrate will proceed to consider sentence. When a person is charged with an indictable offence that cannot be dealt with summarily, or they make an election to have the matter heard and determined on indictment, a magistrate conducts an inquiry to ascertain whether or not there is sufficient evidence to justify committing the person for trial to a higher court. In New South Wales and Victoria, this inquiry is called a committal hearing, whereas in South Australia it is called a preliminary examination. The conduct of such proceedings is governed by the following legislative provisions: •• New South Wales—Criminal Procedure Act 1986 (NSW) ss 55–98 (Chapter 3, Part 2). •• Victoria—Criminal Procedure Act 2009 (Vic) ss 95–157 (Chapter 4). •• South Australia—Summary Procedure Act 1921 (SA) ss 104–107. The essential features of a committal hearing/preliminary examination are: •• A brief of evidence/‘hand-up brief’ containing all witness statements and other material to be relied on at the hearing must be served by the prosecution on the defendant within the time limits specified in the legislation. •• At the court hearing, the prosecution case usually proceeds by the tendering of the brief of evidence/‘hand-up brief’. Witnesses are called to give evidence only if they have been directed to attend, after the defendant has been granted leave to cross-examine the witness94 or if the defendant has established special

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••

••

••

••

reasons (alleged victims of offence involving violence) or substantial reasons (other witnesses) in the interests of justice that the witness should attend and give evidence.95 The defendant may call or give evidence at the hearing, but in the large majority of cases the defendant will reserve their defence until trial. The magistrate must evaluate the evidence presented at the hearing and if it is sufficient to prove every element of the offence,96 or there is a reasonable prospect that the accused would be convicted of an indictable offence,97 the magistrate must commit the accused for trial to the District, County or Supreme Court (as applicable). If the evidence is not sufficient to support a conviction for an indictable offence, the accused must be discharged. If an accused is discharged by a magistrate after a committal hearing or preliminary examination, the DPP has the power to file an ex officio indictment or information against the accused in an intermediate level or superior court. It is a power used sparingly and only where the magistrate has made a clear error in their evaluation of the evidence.

TRIAL PROCEDURE IN INTERMEDIATE AND ­SUPREME COURTS Once an accused person has been committed for trial, the prosecution will present an indictment in the District/County Court or Supreme Court and the accused will be arraigned.98 An arraignment involves reading the indictment and requiring the accused to enter pleas to all charges on the indictment. If pleas of guilty are entered, the case will proceed in a similar manner to a plea of guilty before a magistrate. However, the defence is more likely to call oral evidence on a guilty plea in the higher courts due to the more serious nature of the offences. If the accused pleads ‘not guilty’, the case will go to trial. The judge may make orders for pre-trial disclosure by the prosecution and defence.99 In New South Wales and South Australia, an accused may elect for the trial to be heard and determined by a judge sitting alone. 100 Otherwise, a trial will be conducted before a judge and a jury of twelve persons. The procedures for trial on indictment are set out in the following legislative provisions: •• New South Wales—Criminal Procedure Act 1986 (NSW) ss 152–161 (Chapter 3, Part 3). •• Victoria—Criminal Procedure Act 2009 (Vic) ss 215–238 (Chapter 5, Part 5.7). •• South Australia—Criminal Law Consolidation Act 1935 ss 282–289; Supreme Court Criminal Rules 2014 (SA); Supreme Court Criminal Supplementary Rules 2014 (SA); District Court Criminal Rules 2014 (SA); and District Court Criminal Supplementary Rules 2014 (SA).

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The essential features of trial procedure in the District, County and Supreme Courts in each jurisdiction are: •• The prosecution gives an opening address (to which the accused may respond). •• The prosecution (Crown) case is presented, with all witnesses called to give oral evidence. At the close of the prosecution case, consideration may be given to whether there is sufficient evidence to convict the accused; that is, is there evidence capable of proving each of the elements of the offence beyond reasonable doubt? If not, the jury will be directed to find the accused person ‘not guilty’. •• If there is sufficient evidence for the trial to continue, counsel for the accused may give an opening address and then proceed to call any witnesses to give oral evidence in the defence case. The accused has a right to silence and can elect whether or not to give evidence.101 •• Closing addresses will be given by the prosecutor and defence counsel. •• The trial judge will then give directions to the jury (summing-up). 102 •• The jury returns a verdict after deliberation. Usually the verdict must be unanimous, but there are provisions for majority verdicts in each jurisdiction. 103 •• If the accused is found ‘not guilty’, they are discharged. If the accused is found ‘guilty’, the judge will proceed to sentence after receiving any further evidence or submissions relating to the appropriate penalty to be imposed upon the prisoner.

APPEALS An appeal is an application to a higher court to review or re-hear the decision of a lower court on the ground that the decision is erroneous.104 Table 3.3 gives an overview of the various statutory avenues of appeal in criminal matters, and it is accompanied by an outline of the procedures and powers of appellate courts. TABLE 3.3 Statutory avenues of appeal and powers of appellate courts AVENUE OF ­ APPEAL

NEW SOUTH WALES

VICTORIA

SOUTH ­AUSTRALIA

Summary jurisdiction to intermediate level

ss 11–13, 17–18 Crimes (Appeal and Review) Act 2001

ss 254–262 Criminal Procedure Act 2009

N/A

Summary jurisdiction to Supreme Court (SC)

ss 52–59 Crimes (Appeal and Review) Act 2001

ss 272–273 Criminal Procedure Act 2009

ss 42–43A Magistrates Court Act 1991 (to single judge) (Continued )

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TABLE 3.3 Statutory avenues of appeal and powers of appellate courts (Continued ) AVENUE OF ­ APPEAL

NEW SOUTH WALES

VICTORIA

SOUTH ­AUSTRALIA

Intermediate level to Court of Appeal (CA) or Court of Criminal Appeal (CCA) or Full Court of the Supreme Court (FCSC)

ss 5–8A Criminal Appeal Act 1912

ss 274–294 Criminal Procedure Act 2009

ss 352–357 Criminal Law Consolidation Act 1935

SC to CA or CCA or FCSC

ss 5–8A Criminal Appeal Act 1912

ss 274–294 Criminal Procedure Act 2009

ss 352–357 Criminal Law Consolidation Act 1935

SC/CA/CCA/FCSC to High Court

s 35(1) Judiciary Act 1903 (Cth)

s 35(1) Judiciary Act 1903 (Cth)

s 35(1) Judiciary Act 1903 (Cth)

In New South Wales and Victoria, a defendant can appeal against a conviction and/or sentence imposed by a magistrate to the District Court or County Court by filing a notice of appeal within twenty-eight days of the day on which the sentence was imposed.105 The prosecution has a similar right of appeal but only against sentence.106 In Victoria, these appeals are determined by a judge after a re-hearing. 107 In New South Wales, however, such appeals are determined by reference to the transcripts of evidence heard before the magistrate; new evidence may be given only with the leave of the court and witnesses can be called to give evidence again only if there are special reasons (victims) or substantial reasons.108 After hearing the appeal, the District Court and County Court have powers to dismiss the appeal or set aside the conviction and/or sentence. If a sentence is set aside, the court may impose any appropriate sentence or vary the sentence imposed by the magistrate. 109 In South Australia, most appeals against the decisions of magistrates are made to a single judge of the Supreme Court,110 and the appellate court may re-hear any witnesses or receive fresh evidence if it is in the interests of justice to do so. 111 The appellate court has broad powers to confirm, vary or quash the orders of the magistrate or remit back to the magistrate for further hearing.112 All jurisdictions provide for a question of law to be referred from a magistrate to a single judge of the Supreme Court by any party, a process which can enable a question of law to be resolved without affecting an acquittal.113 In New South Wales, an appeal against a conviction and/or sentence after trial or plea of guilty in the District Court or Supreme Court lies to the Court of Criminal Appeal, where two or three judges will review the case to determine if there has been any error in judicial directions to the jury or in imposing sentence. The prosecution

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can appeal against sentence only on the basis that it is ‘manifestly inadequate’. 114 Similarly, in Victoria, there is an avenue of appeal from the County Court or Trial Division of the Supreme Court to the Court of Appeal for persons convicted of an offence and the DPP.115 In South Australia, similar appeal procedures are available from the District Court and Supreme Court to the Full Court of the Supreme Court116 as provided in Part 11 of the Criminal Law Consolidation Act 1935 (SA). In all jurisdictions, if the appellate court allows an appeal against conviction, there is express statutory authority to order a retrial of the accused or to quash the conviction, enter a verdict of acquittal and order immediate release. It is important to emphasise that the appellate courts will allow an appeal only if there has been a ‘substantial miscarriage of justice’.117 The final appellate avenue in criminal cases is found in s 35(1) of the Judiciary Act 1903 (Cth), which gives the High Court jurisdiction to hear and determine appeals from the judgments of the Supreme Court of an Australian state, including Courts of Appeal. What must be emphasised is that there is no automatic right of appeal to the High Court; in order to have your appeal heard, the High Court must grant you special leave.118 There are only a few criminal cases each year in which such leave is granted and they are where the case raises ‘a point of law of general importance’. A party must make what is called ‘an application for special leave to appeal’, which must be determined by a minimum of two judges119 before a full appeal bench of five judges will hear the substantive appeal on the merits.

Important references For more extensive coverage of the criminal justice system and criminal procedure, you should consult the following textbooks. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 4 ‘The Criminal Process’ 259–425 and Chapter 5 ‘Police and the Criminal Process’ 426–508 (New South Wales students only). Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 1 ‘General Principles’ 29–41, ­Chapter 11 ‘Criminal Procedure and Evidence—Part 1 Investigation, Arrest and Bail’ 546–615 and Chapter 12 ‘Criminal Procedure and Evidence—Part 2 Trial, Admissions, Sentence and Appeal’ 616–706 (New South Wales students only). Francine Feld, Andrew Hemming and Thalia Anthony, Criminal Procedure in Australia (2015). Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (5th edn, 2014) Chapter 2 ‘Police Investigation’ 36–69, Chapter 4 ‘Pre-trial’ 104–42, Chapter 5 ‘Trial’ 143–72 and Chapter 9 ‘Appeals’ 281–98. Jeremy Gans, Terese Henning, Jill Hunter and Kate Warner, Criminal Process and Human Rights (2011). In addition, you should obtain and read the various legislative provisions ­identified and ­discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 Outline the procedures in your jurisdiction for dealing with prescribed indictable matters in summary proceedings before magistrates. 2 What do you understand by the statement that ‘the police are the gatekeepers of the criminal justice system’? 3 Maxine Brady comes to your office and requests that you act for her in relation to three criminal charges that she has pending before a magistrate. Maxine indicates that she wants to plead guilty to all three charges. In your interview with Maxine, what matters, as a general proposition, would you ascertain before entering the pleas of guilty at court?

Problem question Assume the following facts. Carmelita is a very popular exotic dancer in the ‘Dinky Di Dolls!’ show at the Pink Pussyfoot nightclub. About two months ago, Carmelita noticed that there was a man in the vicinity of the staff entrance at the rear of the nightclub each evening when she arrived to perform in the show and again when she left the nightclub after the show. On a number of occasions, Carmelita also saw this man outside the block of units where she lives. As this man’s continued presence at these locations over a number of weeks began to ­disturb Carmelita, she noted down a description of him on a piece of ­notepaper. One evening after the show, Carmelita saw this same man outside the club pushing what appeared to her to be a piece of rope into the pocket of his trousers. As a result, ­Carmelita reported this incident to the police and provided them with a detailed description of the man. Early on a Saturday morning, approximately three days after Carmelita had reported the matter to the police, Carmelita left the nightclub by way of the rear door. As she walked towards her car, she felt a presence behind her. Just as she was about to turn around, she felt a rope around her neck and a hand gripping her right breast. These actions caused Carmelita to fall to the ground and as she fell she caught a glimpse of her assailant and recognised him as the man she had previously seen outside the nightclub and her block of units during the past weeks. At approximately 6.00 am that morning, a garbage truck driver discovered the ­unconscious Carmelita in the Pink Pussyfoot nightclub car park. She was taken to ­hospital, where upon full medical examination it was found that she had suffered a fractured skull, cuts and abrasions to her face and legs, severe bruising to her back, breasts and genital area, and rope burns around her neck. Swabs were taken for DNA profiling. Two weeks later, police were patrolling the area near the Pink Pussyfoot nightclub and at 2.30 am observed Reggie, a man fitting the description which Carmelita had earlier ­provided to police. Detectives Power and Boots were called to the scene. Boots ­approached Reggie and said, ‘We are investigating an attack on a dancer from this ­nightclub which occurred about two weeks ago. Would you mind coming back to the police station to assist us with our enquiries?’ Reggie looked at the four police officers standing around him and then walked with them to the police vehicle. At the police station, Reggie was taken to an interview room, where he was searched. A length of rope was found in one of the pockets of his trousers. Following this, Boots said, ‘We are going to take a sample of your hair for the purposes of our investigation. Do you consent to this

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DNA sample being taken? Also, you are required to be photographed and fingerprinted’. Reggie did not reply. Boots removed some strands of hair from Reggie’s head for forensic examination and arranged for another officer to fingerprint and photograph Reggie. After being provided with refreshments, Reggie was taken to the cells of the police station and Boots said to him, ‘You clearly match the description of the man who attacked the dancer from the Pink Pussyfoot nightclub and we intend to conduct a video-recorded interview with you as soon as the equipment is available. You don’t have to participate in the interview, but spend some time here thinking about what you will say. Oh and by the way, I assume you don’t want to call one of those blood-sucking, money-grubbing lawyers to sit in on the interview’. At 10.00 am, Reggie was taken to the interview room, where he participated in an electronically recorded interview and denied that he was responsible for the stalking of and eventual serious assault upon Carmelita. Reggie was later charged and refused bail by the officer in charge of the police station. Discuss the legality or otherwise of all the police actions in relation to the apprehension and subsequent detention of Reggie. Outline the reasons for the refusal of bail by the authorised police officer in Reggie’s case. For suggested solutions to problem questions, please visit .

Notes 1 2 3 4 5

6 7 8

9

10 11 12 13 14 15

See ‘The two branches of the criminal law’, p 13. See, for example, Criminal Procedure Act 2009 (Vic) s 6. This dichotomy is considered in ‘Types of criminal offences’, pp 47–50. The various avenues of appeal in criminal matters and powers of courts in their ­respective appellate jurisdictions is considered further in ‘Appeals’, pp 65–7. See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 273; and Australian Institute of Criminology, Australian Crime: Facts and Figures 2013 (2014) Chapter 5 ‘Criminal Courts’ 89–90. See Children (Criminal Proceedings) Act 1987 (NSW) s 28; Children, Youth and Families Act 2005 (Vic) s 516; and Young Offenders Act 1993 (SA) s 17. See Coroners Act 2009 (NSW) s 82; Coroners Act 2008 (Vic) s 72; and Coroners Act 2003 (SA) s 25. See, for example, District Court Act 1973 (NSW) Part 4, Criminal Procedure Act 1986 (NSW) s 128 and Practice Note SC CL 2, Supreme Court Common Law Division— Criminal Proceedings (2015); County Court Act 1958 (Vic) s 36A; and District Court Act 1991 (SA) s 9. Also, see Summary Procedure Act 1921 (SA) s 103(3aa) regarding the possibility of sentencing in the Magistrate’s Court for major indictable offences where the defendant admits the charge before the matter has proceeded to a preliminary examination. Considered in detail in Chapter 4. Criminal Procedure Act 1986 (NSW) s 6; Summary Procedure Act 1921 (SA) s 5(2). Summary Procedure Act 1921 (SA) s 5(3); Crimes Act 1900 (NSW) s 4. Criminal Procedure Act 1986 (NSW) s 260(1). Criminal Procedure Act 1986 (NSW) s 260(2). Summary Procedure Act 1921 (SA) s 103(3).

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16 Sentencing Act 1991 (Vic) s 113; Criminal Law (Sentencing) Act 1988 (SA) s 19(3)(a)(i); Criminal Procedure Act 1986 (NSW) ss 267(2) and (3), 268 (1A). There are also maximum fines prescribed in each jurisdiction. 17 Sentencing Act 1991 (Vic) s 113B; Crimes (Sentencing Procedure) Act 1999 (NSW) s 58. 18 Criminal Law (Sentencing) Act 1988 (SA) s 19(3)(a)(ii). 19 Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (5th edn, 2014) 108. 20 Police also have broader functions, including providing guidance and assistance to community members in relation to such things as personal safety, properly securing property, and in times of personal or family tragedy. See John Avery, Police—Force or Service? (1981). 21 See generally Christopher Corns, Public Prosecutions in Australia: Law, Policy and Practice (2013). 22 See ‘The parties to a criminal case’, p 11. 23 Prosecution Guidelines for the NSW DPP available at ; DPP Prosecutions Policies for the Victorian Office of Public Prosecutions available at ; and Prosecution Policy and Guidelines for the SA DPP available at . 24 See New South Wales DPP Prosecution Guidelines, Guideline 4 ‘The Decision to ­Prosecute’; Victorian Office of Public Prosecutions DPP Prosecutions Policies, ­Policy 2 ‘The Decision to Prosecute’; and South Australian DPP Prosecution Policy and ­Guidelines, ‘The Decision to Prosecute’. 25 In New South Wales and Victoria, see Legal Profession Uniform Law Australian ­Solicitors’ Conduct Rules 2015, Rule 29; Legal Profession Uniform Conduct (Barristers) Rules 2015, Rules 83–95. In South Australia, see the Law Society of South Australia, Australian Solicitors’ Conduct Rules, Rule 29 and South Australian Bar Association Inc, Barristers’ Conduct Rules, Rules 82–94 (which substantially mirror the uniform rules in place in New South Wales and Victoria). 26 See the Legal Aid Commission Act 1979 (NSW) and the various policies, including those applicable in criminal cases, available at . 27 See the Legal Aid Act 1978 (Vic) and the VLA Handbook for Lawyers, including the ‘Criminal Law Guidelines’, available at . Note the effect of Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(d)–(f); see also Slaveski v Smith (2012) 34 VR 206. 28 See the Legal Services Commission Act 1977 (SA) and the policies and guidelines ­available at . 29 See The State of New South Wales v Canellis (1994) 181 CLR 309; R v Karounas (1995) 63 SASR 451; Craig v State of South Australia (1995) 184 CLR 163; Attorney General for New South Wales v Milat (1995) 37 NSWLR 370; R v Kennedy (1997) 94 A Crim R 341; Sinanovic v The Queen (1998) 72 ALJR 1050; R v Rich [1998] 4 VR 44; R v IAS (2004) 89 SASR 159; and R v Chaouk (2013) 231 A Crim R 337. 30 Criminal Procedure Act 2009 (Vic) s 197(3); see also R v Hoang (2007) 16 VR 369 and Slaveski v Smith (2012) 34 VR 206. 31 See Criminal Law (Legal Representation) Act 2001 (SA) ss 3, 6–11. 32 Francine Feld, Andrew Hemming and Thalia Anthony, Criminal Procedure in Australia (2015), 30.

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33 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100; Criminal Law Consolidation Act 1935 (SA) s 271—reference is to ‘a person’; Crimes Act 1958 (Vic) s 458(1)—reference is to ‘any person whether a police officer or not’. 34 See Vicki Sentas and Rebecca McMahon, ‘Changes to Police Powers of Arrest in New South Wales’ (2014) 25 Current Issues in Criminal Justice 785, who question whether the reformulation of LEPRA s 99 in New South Wales signals a shift away from the established common law position that arrest should be used as a last resort. On the common law position, see Donaldson v Bromby (1982) 60 FLR 126; DPP v Carr (2002) 127 A Crim R 151; and DPP v CAD [2003] NSWSC 196. 35 These safeguards also apply to the exercise of other police powers as set out in s 201(1) LEPRA, including the power to search premises and seize property; see, for example, Poidevin v Semaan (2013) 85 NSWLR 758. 36 See Marshall v Osmond [1983] QB 1034 and R v Turner [1962] VR 30. 37 R v Coombe (Unreported, CCA (NSW), 24 April 1997). 38 See R v Lavery (1978) 19 SASR 515; R v Conley (1982) 30 SASR 226; The Queen v S and J (1983) 32 SASR 174. In New South Wales, see Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW) Sch 1, which extends the protections in LEPRA Part 9 (see ‘Detention for questioning’, pp 55–6) to ‘protected suspects’. This legislation had not commenced at the time of writing. 39 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 30. 40 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 31. 41 Summary Offences Act 1953 (SA) s 81(2)–(3). 42 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 47–48; Crimes Act 1958 (Vic) s 465(1). 43 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 49; Magistrates’ Court Act 1989 (Vic) s 78(1)(b); Summary Offences Act 1953 (SA) s 67(4)(c). 44 See Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 110(2) for the circumstances when a person is under arrest; and Crimes Act 1958 (Vic) s 464(1) as to when a person is ‘in custody’. 45 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 122–131. Also, see Summary Offences Act 1953 (SA) ss 79A(1)–(3), 83A; and Crimes Act 1958 (Vic) ss 464A(3), 464C–464G. 46 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 114–120. Also, see Summary Offences Act 1953 (SA) s 78(2)–(10); and Crimes Act 1958 (Vic) s 464A(1)–(4). 47 Note that upon commencement of the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW) Sch 1 the maximum investigation period is extended to six hours, and the extension of the maximum investigation period by detention warrant is limited to a further six hours. Also, the definition of a person who is under arrest in LEPRA s 110(2) is removed. Awaiting proclamation of commencement of amending Act at the date of writing. 48 Summary Offences Act 1953 (SA) s 78(2)(a)(ii). See also subs (3a). 49 Criminal Procedure Act 1986 (NSW) s 281; Summary Offences Act 1953 (SA) ss 74C–74G; Crimes Act 1958 (Vic) s 464H. 50 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 133. 51 Summary Offences Act 1953 (SA) s 81(4)–(4g). 52 Crimes Act 1958 (Vic) ss 464K, 464N–464NA. 53 Crimes Act 1958 (Vic) ss 464L–464M.

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54 55 56 57 58 59 60 61 62

63 64 65 66

67

68 69 70 71

72 73 74 75 76 77 78 79 80 81 82 83 84 85

Crimes Act 1958 (Vic) s 464L(1). Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 91–94. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 95. As defined in Criminal Law (Forensic Procedures) Act 2007 (SA) s 3. R v Kane (2004) 144 A Crim R 496; [2004] NSWCCA 78. See Crimes (Forensic Procedures) Act 2000 (NSW) s 3 and Crimes Act 1958 (Vic) s 464(2). Criminal Law (Forensic Procedures) Act 2007 (SA) s 3. Crimes (Forensic Procedures) Act 2000 (NSW) ss 9–13; Crimes Act 1958 (Vic) s 464S. Crimes (Forensic Procedures) Act 2000 (NSW) ss 17–20; Crimes Act 1958 (Vic) s 464SA. A ‘senior police officer’ is one of or above the rank of sergeant in New South Wales and one of or above the rank of senior sergeant in Victoria. Crimes (Forensic Procedures) Act 2000 (NSW) ss 23–26; Crimes Act 1958 (Vic) ss 464T, 464U (Children’s Court in relation to a forensic procedure on a child). Criminal Law (Forensic Procedures) Act 2007 (SA) ss 3, 14–19. Bail Act 2013 (NSW) ss 4 (‘bail authority’), 43; Bail Act 1985 (SA) s 5(1)(e) (‘bail ­authorities’); Bail Act 1977 (Vic) s 10(1). See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 317–33 for a critical review of the development of bail laws in New South Wales. DPP (NSW) v Tikomaimaleya [2015] NSWCA 83; see also M v R [2015] NSWSC 138; R v Ebrahimi [2015] NSWSC 335; JM v R [2015] NSWSC 978; and DPP (NSW) v Mawad [2015] NSWCCA 227. Bail Act 2013 (NSW) ss 16A–16B. Bail Act 2013 (NSW) ss 19, 20. Bail Act 2013 (NSW) s 17. Bail Act 1977 (Vic) ss 4(2), 4(4), 13; see also Robinson v The Queen [2015] VSCA 161. Further, see Judicial College of Victoria, Decision-Making Flowchart for Bail Applications (2015). Bail Act 1985 (SA) s 10A. Bail Act 1985 (SA) s 10(1); Bail Act 1977 (Vic) s 4(3). Bail Act 2013 (NSW) ss 20A, 23–30; Bail Act 1985 (SA) ss 11–11A; Bail Act 1977 (Vic) ss 5, 9. Bail Act 2013 (NSW) ss 48–56; Bail Act 1985 (SA) ss 14–16; Bail Act 1977 (Vic) ss 18–18A. Bail Act 2013 (NSW) s 79; Bail Act 1985 (SA) s 17; Bail Act 1977 (Vic) s 30. Criminal Procedure Act 1986 (NSW) ss 173, 177–178. The possibility of a private criminal prosecution is retained by Criminal Procedure Act 1986 (NSW) s 174, although such prosecutions are extremely rare. Criminal Procedure Act 1986 (NSW) s 179. Criminal Procedure Act 1986 (NSW) ss 333–336. Criminal Procedure Act 2009 (Vic) ss 6–7. See also Criminal Procedure Act 2009 (Vic) s 7A regarding the removal of time limits previously applied to certain sexual offences. Criminal Procedure Act 2009 (Vic) ss 14–18. Criminal Procedure Act 2009 (Vic) ss 21–22, 26. Summary Procedure Act 1921 (SA) s 49.

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86 Summary Procedure Act 1921 (SA) ss 101–103. 87 See Expiation of Offences Act 1996 (SA) ss 5–6, 8. 88 See Summary Procedure Act 1921 (SA) s 52(1). 89 R v Radic (2001) 122 A Crim R 70. 90 See R v Brown (1989) 17 NSWLR 472. 91 Criminal Procedure Act 1986 (NSW) s 182; Summary Procedure Act 1921 (SA) s 57A. 92 Doreen McBarnet, Conviction (1981) 152, extracted in David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 288–9. 93 See R v Bilick (1984) 36 SASR 321; Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166; DPP (NSW) v Elskaf [2012] NSWSC 21; and DPP v Sadler [2013] NSWSC 718. 94 Criminal Procedure Act 2009 (Vic) ss 123–124. 95 Criminal Procedure Act 1986 (NSW) ss 91–93; Summary Procedure Act 1921 (SA) s106; R v Byczko (No 1) (1977) 16 SASR 506; Losurdo v DPP (1998) 103 A Crim R 189; Hanna v Kearney & Commonwealth DPP [1998] NSWSC 227; DPP v Paterson [2004] NSWSC 693. 96 Summary Procedure Act 1921 (SA) s 107. 97 Criminal Procedure Act 1986 (NSW) s 65; Criminal Procedure Act 2009 (Vic) s 141(4). 98 In New South Wales, this must be within four weeks after committal for trial: Criminal Procedure Act 1986 (NSW) s 129. 99 See Criminal Procedure Act 1986 (NSW) ss 134–149F; Criminal Procedure Act 2009 (Vic) ss 182–191. 100 Criminal Procedure Act 1986 (NSW) ss 130–133; Juries Act 1927 (SA) s 7. 101 See X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v New South Wales Crime Commission (2013) 251 CLR 196 in relation to the accusatorial nature of the criminal justice system in Australia and the accused’s right to silence. 102 See Jury Directions Act 2015 (Vic). 103 Jury Act 1977 (NSW) s 55F; Juries Act 1927 (SA) s 57; Juries Act 2000 (Vic) s 46. 104 LexisNexis Concise Australian Legal Dictionary (4th edn, 2011) 31. 105 Crimes (Appeal and Review) Act 2001 (NSW) s 11; Criminal Procedure Act 2009 (Vic) s 255. 106 Criminal Procedure Act 2009 (Vic) ss 257–258; Crimes (Appeal and Review) Act 2001 (NSW) s 23. 107 Criminal Procedure Act 2009 (Vic) ss 256, 259. 108 Crimes (Appeal and Review) Act 2001 (NSW) ss 17–19. 109 Criminal Procedure Act 2009 (Vic) ss 256, 259; Crimes (Appeal and Review) Act 2001 (NSW) ss 20, 27. 110 See Magistrates Court Act 1991 (SA) s 42(2)(ab) regarding appeals against sentences imposed by magistrates in relation to major indictable offences. 111 Magistrates Court Act 1991 (SA) s 42(4). 112 Magistrates Court Act 1991 (SA) s 42(5). 113 Criminal Procedure Act 2009 (Vic) s 272; Crimes (Appeal and Review) Act 2001 (NSW) ss 52–59; Magistrates Court Act 1991 (SA) s 43. 114 Criminal Appeal Act 1912 (NSW) ss 5, 5D. 115 Criminal Procedure Act 2009 (Vic) ss 274–290. Appeals by the DPP are only against an inadequate sentence.

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116 The Full Court of the Supreme Court is commonly referred to as the Court of Criminal Appeal in South Australia when hearing criminal appeals. 117 Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Procedure Act 2009 (Vic) s 276; ­Criminal Law Consolidation Act 1935 (SA) s 353(1). 118 Judiciary Act 1903 (Cth) s 35(2). 119 The criteria for granting special leave applications are set out in s 35A Judiciary Act 1903 (Cth).

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PUBLIC ORDER OFFENCES COVERED IN THIS CHAPTER In this chapter, you will learn about: • the concept of ‘public place’ • contemporary policing powers to maintain public order • offensiveness • damage to property • public assemblies • the regulation of prostitution/sex work.

CASES TO REMEMBER Police v Butler [2003] NSWLC 2 Beck v State of New South Wales [2012] NSWSC 1483; State of New South Wales v Beck [2013] NSWCA 437 Hammond v The Queen (2013) 85 NSWLR 313

STATUTES TO REMEMBER Summary Offences Act 1988 (NSW) Summary Offences Act 1953 (SA) Summary Offences Act 1966 (Vic) (Note: each Act is hereafter referred to as SOA)

INTRODUCTION The regulation of human behaviour in public, as opposed to private, places has been a significant concern of governments and law enforcement authorities since the time of the first convict settlement in Australia. Various approaches to the maintenance of public order in society have been used, including the criminal law, social welfare and civic tolerance models.1 Apart from the historical concept of ‘breach of the peace’,2 public order offences have largely been statutory creations, the significant majority of which are prosecuted before magistrates in courts of summary jurisdiction. These offences make up a largely neglected area of criminal law scholarship due to a perception of triviality; however, they ‘loom large in the daily lives of the citizens, the police, criminal lawyers and magistrates … [and] reveal important perspectives on the process of criminalization, the nature and structure of criminal liability, and the political, social and cultural context of law enforcement’.3 As McNamara notes,

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‘[p]ublic order criminal laws [encompass] a broad span of offences, from “trivial” status-based offences to behaviour involving serious harms, and includes a diverse range of offence types from subjective mens rea to reverse onus offences to strict and absolute liability [and highlight] the complex inter-relationship between the substantive (that is, criminal offence) and the operational (police powers)’. 4 This public order offences chapter will encourage you to draw on, and further develop, your knowledge and skills in working with the criminal law and procedure framework we considered in Part 1 of this book. The dominant feature of public order legislation is the concept of ‘offensiveness’. The enforcement of public order legislation has been characterised by police discretion and the sometimes strained relationships between the police and certain groups who tend to use public space more often than others, such as youths and Indigenous Australians. The intersection of substantive law and procedure is clearly highlighted in considering public order offences.

IMAGINE THIS SCENARIO Two police officers were conducting a foot patrol at approximately 8 pm on a Friday evening in a town with a high number of Indigenous residents. While walking across the street near a hotel, the police officers heard a local Indigenous woman, Etta, call out, ‘Hey you, come here’. The police officers stopped and Etta walked up to them and said with a belligerent tone, ‘You cunts are useless. A man assaulted me and you cunts do nothing. He fucken grabbed me by the hair and youse are goin’ to fucken lock him up’. The police officers told Etta not to swear and, becoming louder, she replied, ‘Fuck you, just lock him up. He assaulted me and you fucken lazy cunts do nothin’. The police officers again warned Etta to stop swearing and then the alleged assailant walked to where the police were standing. Etta said in a loud and aggressive voice, ‘That’s the cunt, lock him up. You fucken pulled my hair, cunt and I’m havin’ you up’. Etta then continued to noisily berate the police officers to arrest her alleged assailant. The police officers attempted to calm Etta down and asked her a number of times to attend the police station to provide a statement in relation to the alleged assault. These requests were met with further abuse from Etta towards the police and repeated use of the words, ‘fuck’ and ‘cunt’. At the time of this incident there were a significant number of people walking in the street as well as several people entering and leaving the nearby hotel.5

This scenario usefully illustrates the issue of maintaining order in a public place, a street outside a hotel which people were entering and leaving, and the use of police discretion in determining whether to arrest and charge a person with an ‘offensive language’ offence, based on repeated use of the expletives in a loud voice. The context in which such conduct occurs is a very important consideration in relation to whether it can be tolerated or should result in a criminal charge, particularly when the language used has been judicially described as ‘extremely common place now

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and has lost much of its punch’.6 Considering that the swearing occurred in the evening and the hotel patrons are likely to be adults, this conduct might be described as relatively minor. It may be fuelled by alcohol consumption and, as there is no apparent direct threat of physical harm to any person from the swearing, it may lead to this conduct being tolerated by the police officers. On the other hand, the continued abuse and use of expletives, the increasingly loud and aggressive tone used by Etta in a public street, and lack of response to attempts to deal with Etta’s complaint away from the public place may be factors that lead the police to consider arresting and charging Etta.

THE CONCEPT OF ‘PUBLIC PLACE’ As illustrated in the above scenario, the emphasis is on the ‘public’ nature of these offences and they must generally have occurred ‘in’, ‘near’, ‘within view of’ or ‘within hearing from’ a ‘public place’. Accordingly, the concept of ‘public place’ has a central role in the regulation of public order. All jurisdictions provide a statutory definition of ‘public place’ in broad terms. This is illustrated by the definition from the SOA (NSW) s 3(1): public place means: (a) a place (whether or not covered by water), or (b) a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.

The definition is extended by s 3(2) to include being inside a vehicle in a public place.7 From a simple reading it is clear that this definition has a broad reach. Basically, a ‘public place’ is anywhere the public go (whether they have a right to or not),8 although ‘school’ is separately defined to place emphasis on the presence of children and young persons at such a place. In applying this definition to the above scenario it is apparent that the street in the town on which the hotel and other buildings were located is a ‘public place’. The definition of ‘public place’ in s 4(1) SOA (SA)9 is similarly broad, and since ‘includes’ is used, the phrase takes its ordinary meaning as well as applying to the places specifically set out in the definition. In s 3 SOA (Vic) an extensive and interesting list of examples is included in the definition of ‘public place’. Again, in this jurisdiction, the words take their ordinary meaning in addition to the examples listed. In practical effect, the definitions from all jurisdictions similarly emphasise the actual use of the place by members of the public rather than proprietary rights. 10

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The presence of other persons in the place at the time of the offence is immaterial to determining whether the offence occurred within a public place: Stutsel v Reid (1990) 20 NSWLR 661.11 Loveday J did, however, suggest that this might be a factor relevant to sentencing.

CONTEMPORARY POLICING POWERS It is important to understand that the police are given certain specific statutory powers for dealing with persons in public places in addition to their general law-enforcement powers. These include powers to move people on and to require identity to be disclosed, and emergency powers for dealing with public disorder. They originate from the common law relating to preventing or suppressing a breach of the peace, but in New South Wales they have now been largely consolidated in the Law Enforcement (Powers and Responsibilities) Act 2002 (hereafter LEPRA). In South Australia and Victoria there is a mixture of common law and statutory provisions that operate in relation to these powers, as illustrated in Table 4.1. TABLE 4.1 Police powers in public places across the common law jurisdictions POLICE POWER

NEW SOUTH WALES: LEPRA

SOUTH ­AUSTRALIA: SOA

VICTORIA: SOA

Require identity to be disclosed

s 11

s 74A

s 456AA Crimes Act 1958 (Vic)

Search persons and seize/detain things without warrant

ss 21 (general) and 26 (dangerous implements)

s 68

Common law

Give directions (move on)

s 197

ss 18 (general) & 73 (disorderly behaviour)

s6

‘Special powers’—public disorder

ss 87I–87MA

N/A

N/A

Prevent or suppress a breach of the peace12

Common law

Common law—see Panos v Hayes (1987) 44 SASR 148

Common law

These powers will now be briefly discussed using the New South Wales LEPRA provisions as the ­examples.

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POWER TO GIVE DIRECTIONS Under LEPRA s 197 the police may give a direction to a person in a public place if there is a belief on reasonable grounds that the person’s behaviour or presence in the place is intimidating, likely to cause fear, obstructing other persons or traffic, or is for the purpose of supplying or procuring prohibited drugs. Further, under s 198, the police have power to give a direction to an intoxicated person in a public place to leave the place and not return for a specified period. This direction can only be given if the intoxicated person’s behaviour leads the police officer to believe on reasonable grounds that they are likely to cause injury to another person, damage to property, or otherwise give rise to a risk to public safety, or if the behaviour is disorderly. It is an offence under s 199 to fail to comply with a ‘move on’ or other direction given by a police officer. It is also an offence against s 9 SOA 1988 (NSW) to be intoxicated and disorderly in the same or another public place within six hours of being given a ‘move on’ direction.13

POWER TO REQUIRE IDENTITY TO BE DISCLOSED A police officer may request a person to disclose their identity where the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when or soon after it occurred (LEPRA s 11). It is an offence to fail to disclose your identity or give a false identity in answer to such a request (LEPRA ss 12–13). This power may be exercised anywhere, including in a public place, and a request may be made for the person to provide proof of their identity (LEPRA s 19). Police may also require a person to remove a face covering to facilitate lawful identification (LEPRA s 19A); it is an offence to fail or refuse to comply with the request without special justification (LEPRA s 19B).

POWER TO SEARCH PERSONS AND SEIZE/DETAIN THINGS WITHOUT WARRANT Police have general powers to search a person where there is reasonable suspicion that the person has anything in their possession that is connected with the commission of an offence14 (LEPRA s 21), but there are also some specific powers relating to public places. For example, LEPRA s 26 provides: 26  Power to search for knives and other dangerous implements (1) A police officer may request a person who is in a public place or a school to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a dangerous implement (other than a laser pointer) in his or her custody.

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(1A) A police officer may request a person who is in a public place to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a laser pointer in his or her custody … (3) For the purposes of this section, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement (other than a laser pointer) in his or her custody.

SPECIAL POWERS TO PREVENT OR CONTROL ­PUBLIC ­DISORDERS In response to the race riots on Cronulla Beach in Sydney in December 2005, Part 6A of LEPRA was enacted to provide police with emergency powers in times of public disorder. Under Div 3 of this Part, the Commissioner of Police or a Deputy or Assistant Commissioner of Police may authorise the exercise of special powers in a public place where there are reasonable grounds for believing that there is a large-scale public disorder occurring or a threat of such a disorder occurring in the near future, and they are satisfied that the exercise of those powers is reasonably necessary to prevent or control the public disorder. These special powers include: •• power to establish a cordon around a target area or a roadblock on a target road (s 87I) •• power to stop and search vehicles in the target area (s 87J) •• power to search persons in the target area (s 87K) •• power to request disclosure of identity of a person in the target area and who is reasonably suspected of being involved in a public disorder (s 87L) •• power to seize and detain vehicles, mobile phones or other things if this will assist in preventing or controlling a public disorder (s 87M) •• power to give a direction to disperse groups of persons within a target area (s 87MA). Further, there are emergency powers in Part 6A Div 2 that allow a police officer of or above the rank of Superintendent to close licensed premises, prohibit the sale or supply of liquor, or declare an alcohol-free zone where there are reasonable grounds for believing there is, or is the threat of, a large-scale public disorder.

OFFENSIVENESS It has been observed that ‘the cornerstone of public order legislation is usually a provision that permits police to act where behaviour in a public place is regarded as offensive, insulting, abusive or indecent’.15 Core offences in New South Wales are ‘offensive conduct’ (SOA s 4) and ‘offensive language’ (SOA s 4A). The offensive conduct or language must be ‘in or near, or within view, or hearing from, a public

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place or a school’. It is important to note that offensive language cannot solely constitute a charge of ‘offensive conduct’ (s 4(2)). A defence of reasonable excuse is available to both charges (ss 4(3) and 4A(2)) and it has been held that: reasonable excuse involves both subjective and objective considerations, but these considerations must be related to the immediately prevailing circumstances in which the offensive words, etc are used, just as in self defence or provocation the response of the accused must be related in some way to the actions of the victim and the particular circumstances.16

In South Australia, the offences are styled ‘behaving in a disorderly or offensive manner’ and ‘using offensive language’: SOA s 7(1)(a) and (c). In Victoria, the offences are styled ‘behaving in a riotous, indecent, offensive or insulting manner’ and ‘using profane, indecent or obscene language or threatening, abusive or insulting words’: SOA s 17(1)(c) and (d). The descriptors used in the Victorian legislation have a wider reach than the term ‘offensive’ used in New South Wales and South Australia. Offences of ‘public drunkenness’ and ‘drunk and disorderly in a public place’ still exist in Victoria (SOA ss 13 and 14) and arguably are another form of ‘offensive conduct’. Simply being found drunk in a public place without any associated disorderly conduct is, however, probably more in the nature of a status offence, one that has been abolished in all other jurisdictions.17

WHAT IS OFFENSIVE? ‘Offensive’ is a term common to these offences in all jurisdictions. What meaning has been given to this term?18 In R v Smith [1974] 2 NSWLR 586, Street CJ concluded that although no one of the several dictionary meanings of ‘offensive’ is a precise alternative, behaviour is offensive in the general sense ‘of giving, or of a nature to give offence; displeasing; annoying; insulting’. His Honour emphasised that in giving meaning to the word it had to be read in context, and he noted that the provision was clearly directed to ‘the preservation of order and decorum in the streets and other public places’. Kerr J held in the case of Ball v McIntyre (1966) 9 FLR 23719 that it is conduct which ‘wound[s] the feelings’ or arouses ‘anger, resentment, disgust, or outrage’ in ‘the average man, the reasonable man’. For these purposes the ‘so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions’.20 More recent expositions of the concept of offensiveness have emphasised that it is not fixed, and an objective assessment of whether words or behaviour are ‘offensive’ must also be reflective of community standards at the particular time. It is described as an evolving concept, which is exemplified in the judgments of

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Magistrate David Heilpern in Police v Dunn (1999) 24(5) Alternative Law Journal 238–42, Police v Carr (Unreported, Wellington Local Court, 19 May 2000) and Police v Butler [2003] NSWLC 2.

A CASE TO REMEMBER Police v Butler [2003] NSWLC 2 Police attended a house in Moruya in response to a complaint made by neighbours. Some occupants of the house came out on to the front porch, including the defendant, an intoxicated Indigenous woman, who shouted at the police: What the fuck are youse doing here? My fuckin’ son had to get me out of bed. I can’t believe youse are here. What the fuck are youse doing here? … I fuckin’ know what this is about. It’s about that fuckin’ gas bottle. They can get fucked. I’m not paying them fucking nothing. They can get me our fuckin’ bottle back.

She then shouted at the neighbours: We never had any fuckin’ trouble till youse fuckin’ moved here. Youse have fuckin’ caused this trouble and called the fuckin’ police on me.

The defendant was summonsed for ‘offensive language’, as the police alleged the words could be heard from a public place, the nearby street. Magistrate Heilpern considered various authorities in relation to the concept of ‘offensiveness’, including Ball v McIntyre, McNamara v Freeburn, McCormack v Langham, Connors v Craigie, Saunders v Herold and Burns v Seagrave (at [5]–[21]) and ultimately decided that ‘the word fuck is extremely common place now and has lost much of its punch … one would have to live an excessively cloistered existence not to come into regular contact with the word and not to have become somewhat immune to its suggested previously legally offensive status’ (at [22], [34]). In dismissing the case, Magistrate Heilpern concluded that the language used in context would make ‘little difference’ to the ‘reasonably tolerant person’ and ‘community standards have changed’ to such an extent that he could not be satisfied beyond reasonable doubt that such words are offensive (at [36]–[37]).

In Ferguson v Walkley (2008) 17 VR 647; [2008] VSC 7, Harper J considered the meaning of ‘insulting’ words in SOA (Vic) s 17(1) and included interpretations of ‘offensive’ behaviour and language in his considerations. In this case, Ferguson repeatedly yelled out at Senior Constable Walkley and another police officer, ‘fuck off weak dogs’, ‘fucking weak dog cunts’, ‘you weak dog gutted cunt’ when the police had responded to a call from a hotel that Ferguson had been requested to leave the hotel and was refusing to do so. In holding that the magistrate was correct in convicting Ferguson, Harper J relied on the High Court decision in Coleman v Power (2004) 220 CLR 1 and stated (at 657) that the test is ‘whether the impugned behaviour is so deeply or seriously insulting … so far contrary to contemporary standards of public good order, as to warrant the interference of the criminal law.’

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CASES TO REMEMBER Beck v State of New South Wales [2012] NSWSC 1483; State of New South Wales v Beck [2013] NSWCA 437 Mr Beck (an off-duty police officer) and a group of his friends attended a number of nightclubs in Sydney. At approximately 3 am, Mr Beck and his friends began to travel home; Mr Beck was ‘busting’, and no toilet was available. Mr Beck proceeded to urinate in the gutter next to a parked car (which obscured his body from the waist down). There were no bystanders in the street in which the car was parked. Two police officers conducting a routine patrol noticed Mr Beck and stopped to investigate. Mr Beck was issued with a court attendance notice alleging that he had breached SOA s 4 by behaving in an offensive manner in or near a public place. Mr Beck pleaded not guilty to the offence, and the charge was ultimately withdrawn. Mr Beck subsequently pursued a claim in tort (malicious prosecution) against the State of New South Wales. In the course of those civil proceedings, Adams J found (at [26]) that Mr Beck had not committed an offence against SOA s 4 as ‘there was no person at all in the vicinity who was capable of seeing what the plaintiff was doing’, and that he had a reasonable excuse because he was unable to prevent himself from urinating. However, on appeal, Ward JA observed (at [170]) that ‘the hypothetical reasonable person could have been offended by the act of urination in the street’.21 This difference of judicial opinion demonstrates the difficulties that can be encountered in applying the objective standard of offensiveness to various forms of conduct in different contexts.22

Apart from emphasising the significance of evolving community standards, these decisions also illustrate that what is ‘offensive’ is a highly contextual consideration. 23 The manner in which the words are spoken, the particular public place, the time of day, and the number and profile of persons present at the scene are all important considerations in the objective characterisation of conduct and language as offensive.

IS THERE A SUBJECTIVE MENTAL ELEMENT IN ­‘OFFENSIVE CONDUCT’? Applying the principle from He Kaw Teh that there is a presumption that all statutory criminal offences contain a subjective mental element unless displaced by the words used in the provision or by the legislative intent, it has been held that ‘offensive conduct’ offences cannot be committed unless a subjective mental element (namely, an intent to offend others by the conduct) is proved beyond reasonable doubt. In Pregelj and Wurramurra v Manison (1988) 31 A Crim R 383, Nader J in the Northern Territory Court of Criminal Appeal held (at 399): The gravamen of offensive behaviour is the offending of another person, and the offending must be intended … Behaviour, offensive in other circumstances, committed in complete privacy cannot be offensive … Therefore … the offending of a person,

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actually or potentially, is an integral element of the prescribed conduct. On that view of it the ‘act’ of the defendant includes the act of offending, for which he is excused from criminal responsibility unless the offending were intended or foreseen by him as a possible consequence of his conduct … By ‘intent to offend’ I mean ‘do an act with knowledge that the activity would, or at least could, offend’ …

A contrary view was, however, expressed by the Full Court of the Supreme Court of South Australia in Pfeifer (1996) 68 SASR 285, where Pregelj was distinguished on the basis that the Northern Territory legislation differed from the South Australian legislation. It was held in Pfeifer that offensive behaviour is an offence of strict liability as the presumption that intent or knowledge is an essential element of the offence was rebutted by the purpose of the legislation. Doyle CJ clearly stated (at 293) the position in this jurisdiction as: If it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive.

This interpretation was expressly approved by David J in Police v Rosser [2008] SASC 151 and applied in the context of a similar category of offence, ‘indecent behaviour in public’ (SOA (SA) s 23(1)(a)).24 There is no direct judicial authority as to the mental element requirement in New South Wales. However, Quilter and McNamara have persuasively argued that the ‘offensive conduct’ and ‘offensive language’ offences in New South Wales require proof of a subjective mens rea (that is, knowledge or recklessness) in relation to offensiveness, while the requirement that conduct occur in a particular location is a strict liability element.25 It remains to be seen whether this approach will receive judicial approval.

OTHER VARIANTS OF ‘OFFENSIVE’ CONDUCT IN ­PUBLIC PLACES There are other variants of behaviour in public that may be considered to fall under the general head of ‘offensiveness’. An example is ‘wilful and obscene exposure’, which is prohibited under SOA (NSW) s 5: A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.

A similar offence is found in SOA (Vic) s 19. In South Australia, SOA (SA) s 23 prohibits ‘indecent behaviour and gross indecency’ in a public place. Although exposure of one’s person in public is not specifically mentioned, it is clear from the case of Police v Rosser [2008] SASC 151, where the accused

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exposed his penis while sitting in his parked car, that such conduct is included in the legislative terminology ‘behaves in an indecent manner’. Whether conduct is regarded as obscene has been held to depend heavily upon contemporary ‘community standards and as to what were the circumstances on the day’ that the conduct took place.26 There is English authority that ‘person’ is a synonym for genitals in offences of this nature.27 In fact, the Victorian provision refers to ‘the genital area of his or her body’ rather than using the euphemism ‘person’. In the case of Eyles (Unreported, NSWCCA, 1 October 1997), it was suggested that it is not a requirement of the offence that any person actually see the offender’s genitals. It is sufficient if they are capable of being seen from a public place.

DAMAGE TO PROPERTY This offence category is dealt with as part of public order as it encompasses acts of vandalism and other forms of damage to property in public places. At the same time, the general property damage offences can also be applied to private property. There is a general property damage offence in each jurisdiction that essentially involves intentional or reckless damage or destruction of property belonging to another. Section 195(1) of the Crimes Act 1900 (NSW) is illustrative: 195 Destroying or damaging property (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 5 years; or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.

Section 197(1) of the Crimes Act 1958 (Vic) is similar to the New South Wales provision, but does not include a reference to ‘reckless’ damage or destruction of property.28 In South Australia, s 85(2) and (3) of the Criminal Law Consolidation Act 1935 refers only to ‘another’s property’, but otherwise provide the general offence to a similar effect to the New South Wales provision. Although s 195(1)(b) of the Crimes Act 1900 (NSW) provides that use of fire or explosives aggravates the offence of destroying or damaging property, it is not specifically labelled as ‘arson’ in this jurisdiction. All other jurisdictions characterise the damage to or destruction of property by fire or explosives as ‘arson’ and provide a higher maximum penalty in this regard: Crimes Act 1958 (Vic) ss 197(6)–(7) (‘fire’ only in this jurisdiction); and Criminal Law Consolidation Act 1935 (SA) s 85(1). There must be intention (or recklessness) directed towards the property that is damaged or destroyed, as it is not sufficient that there was an intention to

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injure the owner of the property.29 ‘The foresight that must be proved to establish recklessness is … foresight of harm to property to any degree from minor damage to destruction. … [T]he necessary foresight is not confined to foresight of damage to or destruction of that specific property. It is sufficient that the foresight be in relation to property more generally. … Furthermore, the foresight need not comprehend any particular item of property.’30 The word ‘damage’ is not defined in the legislation, but it has been given a broadranging application. In Morphitis v Salmon [1990] Crim LR 48, Auld J said: The authorities show that the term ‘damage’ for the purpose of this provision should be widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.

A CASE TO REMEMBER Hammond v The Queen (2013) 85 NSWLR 313 Mr Hammond was apprehended by the New South Wales police following a domestic disturbance. While at the police station, Mr Hammond projected a considerable amount of spittle or mucus from his mouth onto a metal seat. Mr Hammond was subsequently convicted of an offence of damaging the property of another under Crimes Act 1900 (NSW) s 195(1)(a). Mr Hammond appealed his conviction, arguing that his actions had merely temporarily compromised the functionality of the seat, which did not amount to ‘damage’ according to the decision in Director of Public Prosecutions v Fraser [2008] NSWSC 244. After an extensive review of the relevant authorities, Slattery J concluded (at 331) that: the course of authority in both England and Australia now supports the conclusion that interference with functionality of the property in question alone, even without physical harm to or ‘derangement’ of the property is sufficient to establish ‘damage’ within the Crimes Act, s 195. In my opinion this conclusion is justified on the various judicial formulae of what constitutes ‘damage’ developed in the course of authority. [Authorities] allow physical harm (‘imperfect’) and functional interference (‘inoperative’) as alternative paths to establishing a finding of criminal damage. Samuels v Stubbs also approved in this court in Hayne, allows that ‘temporary functional derangement’ is alone a sufficient basis for a finding of criminal damage. And [further authorities] allow the establishing of ‘physical harm’ and ‘impairment of value or usefulness’ as separate paths to a finding of criminal damage.

However, the New South Wales Court of Criminal Appeal found (at 332–3) that, on the available facts, Mr Hammond had neither damaged nor interfered with the functionality of the seat (on either a permanent or a temporary basis). Mr Hammond’s conviction was therefore quashed. Nevertheless, the outcome in Hammond effectively overrules the earlier decision in Fraser.31

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A number of ‘public’ property damage offences exist in the various jurisdictions, encompassing acts popularly known as graffiti or vandalism. Table 4.2 gives a comparative overview of these summary offences. TABLE 4.2 Public property damage offences across the common law jurisdictions OFFENCE

NEW SOUTH WALES

VICTORIA

SOUTH ­AUSTRALIA

Damaging or defacing fountains in a public place

s 7 SOA

s 9(1)(a) SOA

N/A

Damaging or desecrating protected places (shrines, monuments)

s 8 SOA

N/A

N/A

Posting bills

s 6 Graffiti Control Act 2008 (NSW)32

s 10(1),(4) SOA

s 48 SOA

Marking premises or property

s 4 Graffiti Control Act 2008 (NSW)

ss 5, 6 Graffiti Prevention Act 2007 (Vic) ‘marking grafifiti/ offensive graffiti’ s 10(1) SOA ‘writes or paints on or otherwise defaces’

s 9 Graffiti Control Act 2001 (SA) ‘marking graffiti’

Playing games so as to cause damage

N/A

N/A

s 53 SOA

There are also some interesting and archaic summary offences relating to ‘damage to any property’ in s 7 of the SOA (Vic). By s 12 of the SOA (NSW) and s 14 of the Graffiti Control Act 2008 (NSW), the defence of committing the act with ‘lawful authority’ is available to any of these offences. There are comparable defences of ‘consent’, ‘lawful excuse’ and ‘acting with authority’ to the offences in Victoria and South Australia.

PUBLIC ASSEMBLIES There is no constitutional right to engage in a public assembly in Australia. 33 Therefore, freedom of assembly in the various Australian jurisdictions has been dependent on judicial tradition, legislative schemes and police discretion.

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The general common law approach, which still prevails in Victoria, is that organising or being involved in a public assembly is not an offence in itself. However, participants in such an assembly may be liable to prosecution for other offences if proper order is not maintained. In Hubbard v Pitt [1976] 1 QB 142, Lord Denning MR said: As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction of traffic, it is not prohibited.

In New South Wales, Part 4 of the SOA sets out the procedure for the authorisation of a public assembly. Under s 23, notice of the intention to hold a public assembly must be served on the Commissioner of Police and must set out the particulars of the assembly, namely the date, time and place where the public assembly is to be held, the nature and purpose of the assembly and the number of persons expected to participate in the assembly (s 23(1)(c)). Provided all the requirements of s 23 are fulfilled, and the public assembly proceeds substantially in accordance with the particulars supplied, a person cannot be guilty of an offence simply by participating in that public assembly: s 24 SOA. It is an offence to knowingly join an unlawful assembly under s 545C of the Crimes Act 1900 (NSW), which includes a public assembly that has not been authorised under the Part 4 procedures. Applications can be made to a court to prohibit the holding of a public assembly under SOA s 25, or under SOA s 26 to authorise a public assembly where proper notice has not been given. The determination of such applications under SOA s 27 is to be done with ‘the greatest expedition possible’ and the courts have emphasised that it involves an important balancing of the democratic rights of freedom of speech and assembly with the democratic rights of others to be spared unnecessary affront, offence or obstruction of their own activities by the exercise of those freedoms 34 or to privacy.35 Concerns regarding the prospect of violence, the risk of public disorder and public safety are often cited in the determination of these applications. 36 In South Australia, a comparable procedure for approval of a proposal to hold an assembly in a public place is contained in the Public Assemblies Act 1972 (SA). By s 6 of this Act, participants in an approved public assembly do not incur any civil or criminal liability by obstructing a public place when the assembly conforms to the approved proposal. There are no equivalent legislative procedures for authorising or approving public assemblies in Victoria, where the common law still applies. There is an archaic offence of being involved in an unlawful assembly or procession under s 10 of the Unlawful Assemblies and Processions Act 1958 (Vic).

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RIOT AND AFFRAY The availability of the offences of ‘riot’ and ‘affray’ in the common law jurisdictions is as follows: •• New South Wales—Crimes Act 1900 ss 93B, 93C •• Victoria—common law •• South Australia—Criminal Law Consolidation Act 1935 ss 83B, 83C. These offences are among the more serious public order offences and have their origins in the common law.37 They encompass violent acts or the threat of violence by a group of persons acting with a common purpose in a public place. The numbers of persons in the group are the distinguishing feature between the two offences, with ‘riot’ occurring when there are larger numbers in the group. In New South Wales, for example, there must be twelve or more persons present together using or threatening unlawful violence.38 The statutory offence of ‘affray’ is styled as follows in s 93C of the Crimes Act 1900 (NSW): 93C  (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) F  or the purposes of this section, a threat cannot be made by the use of words alone. (4) N  o person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as public places.

Under s 93D of the Crimes Act 1900 (NSW), the mental element provided for the offences of ‘riot’ and ‘affray’ includes a recklessness-type alternative to actual intent to use or threaten violence, where the person ‘is aware that his or her conduct may be violent’ (riot) or ‘is aware that his or her conduct may be violent or threaten violence’ (affray). Further, there is a summary offence of ‘violent disorder’ provided in s 11A of the SOA (NSW), which is framed in similar terms to the ‘affray’ offence but requires that there be ‘3 or more persons … present together’ using or threatening unlawful violence. The word ‘violence’ in relation to all offences extends to violent conduct towards property and ‘is not restricted to conduct causing or intended to cause injury or damage’.39 The Criminal Law Consolidation Act 1935 (SA) offences of riot (s 83B) and affray (s 83C) are identical to the New South Wales offences

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(although note differences with respect to penalty); an offence of ‘violent disorder’ can also be found in s 6A of the SOA (SA). In all offences, there is a focus on the violent or threatening conduct of the group of persons taken together in determining whether a person of reasonable firmness would fear for their safety. Even though these offences can be committed in private as well as public places, the usual situation is a public demonstration of force or actual violent conduct that causes others to fear for their personal safety. 40 In Victoria, ‘riot’ and ‘affray’ remain common law offences.41 At common law, an ‘affray’ is typically an offence where two or more persons are involved in a physical fight or mêlée. It involves a display of force or participation in actual violence that causes others (being onlookers) to fear for their own safety.42 Following a consideration of various authorities, including Blackstone’s Commentaries,43 Phillimore and Bray JJ in Field v Receiver of Metropolitan Police [1907] 2 KB 853 at 860, deduced that to establish ‘riot’ at common law, the elements that must be proved are: (1) at least three persons present; (2) acting with a common purpose; (3) which has begun or been executed; (4) with the intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; and (5) force or violence not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.

PROSTITUTION/SEX WORK It is astutely observed by David Brown and his co-authors that ‘[a]lthough prostitution was heavily criminalised for much of NSW’s history, since the late 1970s there has been a widespread liberalisation of prostitution laws. The policy underlying prostitution laws has moved from a concern with moral issues, and focused increasingly on issues such as health (including sexually transmitted infections (STIs) and HIV transmission), planning issues including the location of brothels, police corruption, and working conditions (including client violence)’. 44 Table 4.3 sets out the various criminal offences relating to prostitution activities in the common law jurisdictions, although it should be noted that in South Australia it is illegal to keep or manage a brothel and there is no system of authorising premises for use as brothels.

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TABLE 4.3 Prostitution offences across the common law jurisdictions OFFENCE

SOA (NSW)

SEX WORK ACT 1994 (VIC)

SOA (SA)

Soliciting

ss 19, 19A

ss 12, 13 (street prostitution)

s 25

Living on earnings of prostitution

s 15

s 10

s 26

Procuring another to work as a prostitute

s 15A

s 8 (forcing)

s 25A

Keeping or managing unlawful brothels

s 16 (held out as massage parlours)

ss 21A, 82 (proscribed brothels)

s 28

Permitting premises to be used as brothels

s 17

N/A

s 29

Unlawfully advertising premises used for prostitution

s 18

s 17

N/A

In New South Wales, a halfway approach between prohibition and decriminalisation is evident. The relevant criminal provisions are found in Part 3 SOA (NSW) and the central offences are ‘soliciting clients by prostitutes’ (s 19) and ‘soliciting prostitutes by clients’ (s 19A). ‘Prostitution’ is defined in s 3 of the SOA (NSW): prostitution includes acts of prostitution between persons of different sexes or of the same sex, and includes: (a) sexual intercourse as defined in section 61H of the Crimes Act 1900, and (b) masturbation committed by one person on another, for payment.

As to soliciting clients by prostitutes, the ‘public order’ nature of the offence is apparent in the wording of s 19 of the SOA (NSW): 19 Soliciting clients by prostitutes (1) A person in a road or road related area shall not, near or within view from a dwelling, school, church or hospital, solicit another person for the purpose of ­prostitution. Maximum penalty: 6 penalty units or imprisonment for 3 months. (2) A person shall not, in a school, church or hospital, solicit another person for the purpose of prostitution. …

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(3) A person shall not, in or near, or within view from, a dwelling, school, church, hospital or public place, solicit another person, for the purpose of prostitution, in a manner that harasses or distresses the other person. Maximum penalty: 8 penalty units or imprisonment for 3 months.

The public nature of the prostitution is emphasised, as premises can be legally authorised for use as brothels under the Restricted Premises Act 1943 (NSW) for the conduct of private prostitution activities. As to the offence of soliciting, it has been held that this ‘involves a personal approach, for the purpose of, or which is accompanied by, or which constitutes or conveys, an offer that some form of sexual activity will be engaged in by the person making the approach in return for monetary gain’ and it is sufficient to convey this offer by ‘the mere approach by a prostitute to a person who is a potential customer, when she is dressed in a suggestive manner, perhaps with appropriate gestures or words, or is presented in a particular way’. 45 Apart from soliciting, there are also several other offences related to prostitution, as illustrated in Table 4.3. These are ‘living on earnings of prostitution’, which was originally aimed at those who exploit prostitutes for their own financial purposes (but can extend to family members and partners of prostitutes); ‘causing or inducing another to commit an act of prostitution by coercive conduct or undue influence’; ‘prostitution in premises held out for use as massage parlours’ (a deceptive labelling type of offence);46 ‘allowing premises to be used for prostitution’; ‘advertising premises used for prostitution’; and ‘public acts of prostitution’.47

Important references For more extensive coverage of the substantive law and procedure relating to public order offences, you should consult the following textbooks. Simon Bronitt and Bernadette Mc Sherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 13 ‘Public Order’ 791–869. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 6 ‘Public Order Offences’ 509–84.

In addition, you should obtain and read the various legislative provisions and cases identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 What are the relevant considerations in assessing whether words or conduct are offensive at law? 2 How important is context in the determination of when conduct or language is offensive? 3 Identify the elements of the core ‘offensiveness’ charge in your jurisdiction. Focus particularly on the mens rea that the prosecution must prove beyond reasonable doubt, and refer to relevant judicial authority (if any). 4 What constitutes a ‘public place’ in your jurisdiction? Give some examples of public places. 5 Outline the elements of the general property damage offence in your jurisdiction. Give some examples of what will amount to ‘damage’ to property.

Problem question Assume the following facts. Crude Law, an aspiring actor, was released from a correctional facility on Saturday, 2 April 2016 after serving a short sentence. That day, he wanted to attend the funeral of his former drinking partner, Blade Clowney Jnr. Law went to Clowney’s house in a residential area, opened the gate in the brick fence, walked up the path and knocked on the door. It appeared that a party was in progress. The door was opened by Clowney’s widow, Brunhilda, who said, ‘What the hell are you doing here? If he hadn’t spent so much time in the pub with you, his liver would have been fine. Now, get out of here before I call the ­police!’ Brunhilda slammed the door in his face and Law responded by shouting loudly, ‘You miserable old bitch! You motherfucking slag! You dog-arse cunt! The only reason he spent all his fucking time at the fucking pub was to stay out of your fucking way!’ Law then ran back down the path, vaulted over the garden fence and leaned against the local school sign to decide what to do next. He went to a nearby shop and purchased a can of red spray paint and returned to the Clowney residence. There he spray-painted ‘FUCKING BITCH FACED SLUT LIVES HERE’ on the Clowney garden brick fence, starting at the corner adjoining the neighbouring church and finishing at the side adjoining the school property. Law then went to the local hotel where he decided to drown his sorrows about the demise of Clowney with several schooners of beer and some chasers. He was reasonably intoxicated by the end of the session and eventually the publican told him to leave the hotel. Despite being unsteady on his feet, Law managed to make it to the hotel door. He stood outside and decided it was urgently necessary to urinate and that he would not bother returning to hotel. Anyway, he had been told to leave. He urinated against the front wall of the pub and then started to weave his way down the street. He got to the corner of the local church where he vomited in the gutter and then proceeded to watch a wedding procession. As the bride and groom emerged from the church he shouted at the top of his voice, ‘Christ mate. You don’t have to get chained down to make sure you get it!’ Law then jostled against the wedding guests, removed his pants and exposed his genitals in the direction of the bride and groom, shouting, ‘Have a good fuckin’ night!’ The wedding party abandoned taking photographs and left as soon as possible.

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Finding this rather exciting and stimulating, Law then ran off from the church and ­ ecided to continue walking to an area of the town where he could pick up a prostitute. d He slowly walked along the street, smiling encouragement to anyone who looked game. He then decided that he would need some fortification before he found a friend so he went into a nearby tavern for an alcoholic top-up. He was clearly drunk but managed to drink |two more schooners of beer. He emerged onto the street just as the light was fading. He wove his way along and stood leaning against a lamp-post outside a local nightclub, a notorious ‘pick-up’ joint. A car slowed and the driver asked him if he wanted sex. Law had a few more dollars in his wallet, so he suggested that they drive in the car to the church. He and the driver engaged in mutual masturbation. There then followed a discussion about who was paying who. A compromise was reached where each party gave the other $50.00. Law left the car and decided to cool off in a fountain outside the church without his clothes. The ladies choir had just finished practising in the church and, as they left the premises, Law emerged from the water and stood naked in front of the ladies. Upon hearing screams, he covered himself and ran from the area. He was seen by two police officers patrolling in the area in response to complaints about a ‘madman disturbing the neighbourhood’. Law was arrested by one of the officers and taken to a nearby police station. By now he was sobbing and muttering Clowney’s name over and over. You are the Legal Aid duty solicitor and have been called to the police station. You are provided with all the above factual information as obtained by the police from various witnesses. You visit your client in the cells. Your task is to provide a written advice to Crude Law as to any public order offences with which he is likely to be charged by the police on the basis of all the information available to them. You do not need to consider the law relating to intoxication in this advice. For suggested solutions to problem questions, please visit .

Notes 1 Essentially, the criminal law model is focused on rigid legal regulation and policing of public spaces to ensure that public order is strictly maintained, the social welfare model is focused on dealing with the use of public space or maintenance of public order through social methods of assistance such as access to emergency accommodation, and the civic tolerance model is focused on a more flexible and discretionary policing approach to public order which reflects community tolerance of certain forms of behaviour in public spaces rather than a ‘zero tolerance’ rigid policing approach. See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 509–15. 2 The concept of ‘breach of the peace’ has its origins in the common law and, although not an offence in itself, still remains an important basis of several ‘public order’ offences today—see Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) 812–16; and Kuru v NSW (2008) 236 CLR 1. 3 Bronitt and McSherry, above n 2, 795. 4 Luke McNamara, ‘Criminalisation Research in Australia: Building a Foundation for Normative Theorising and Principled Law Reform’ in Arlie Loughnan and Thomas Crofts (eds), Criminalisation and Criminal Responsibility in Australia (2015) 44. 5 Adapted from Robert Jochelson, ‘Aborigines and Public Order Legislation in New South Wales’ Crime and Justice Bulletin 34 (1997) Appendix 1, 17.

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6 Police v Butler [2003] NSWLC 2, [22] (Magistrate David Heilpern). 7 Cf Hardman v Minehan & DPP (2003) 57 NSWLR 390 in which it was held that having a loaded firearm within the confines of a car, in a public place, was insufficient to amount to an offence of ‘possessing a loaded firearm in a public place’ under s 93G(1)(a) (i) Crimes Act 1900 (NSW). In his reasoning, it is clear that Tobias JA considered that possessing a loaded firearm inside the confines of a car was quite different from swinging it around in the open air of a public place, particularly having regard to the potential danger to public safety. Note that Crimes Act 1900 (NSW) s 93F(2) now effectively reproduces the definition of ‘public place’ in SOA s 3(2). 8 See In the Appeal of Camp [1975] 1 NSWLR 452, where the definition of ‘public place’ from the Summary Offences Act 1970 (NSW) was analysed by the Court of Criminal Appeal. The definition from this Act is in identical terms to the current SOA (NSW). 9 Section 4(1) SOA (SA) provides: ‘public place’ includes— a a place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier of that place; and b a place to which the public are admitted on payment of money, the test of admittance being the payment of money only; and c a road, street, footway, court, alley or thoroughfare which the public are allowed to use, notwithstanding that that road, street, footway, court, alley or thoroughfare is on private property. 10 See, for example Semple v Howes (1985) 38 SASR 34, 43. 11 See also State of New South Wales v Beck [2013] NSWCA 437, [170]. 12 See generally R v Howell [1982] QB 416 for a definition of the concept of ‘breach of the peace’ and the powers of any citizen to prevent or suppress a breach of the peace. 13 Note that a person cannot be proceeded against and convicted of both an offence against SOA s 9 and LEPRA s 199: SOA s 9(4). A person who has received a ‘move on’ direction and persists in the relevant conduct may also be detained under the Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW). 14 See pp 54–5, where police powers of search and seizure are considered in more detail. 15 Brown et al., above n 1, 518. 16 Conners v Craigie (1994) 76 A Crim R 502, 507. 17 ‘Status’ offences are discussed in Chapter 2 under the heading ‘The conduct element (actus reus)’—see p 22. See also Luke McNamara and Julia Quilter, ‘Public Intoxication in NSW: The Contours of Criminalisation’ (2015) 37 Sydney Law Review 1, 28 regarding developments in New South Wales which ‘resemble … a revival of the old offence of “drunk and disorderly”’ through the ‘move on’ powers and related offences discussed earlier in this chapter. 18 See Andrew von Hirsch and AP Simester (eds), Incivilities: Regulating Offensive Behaviour (2006) for various essays on the legal regulation of offensive behaviour, including insightful contributions about the concept of ‘offensiveness’ and its legitimate reach. 19 This case was specifically in relation to the provision then existing in s 17(d) Police Offences Ordinance 1930 (ACT), ‘behaving in an offensive manner in a public place’. 20 For interpretation of a similar provision in Victoria, see Worcester v Smith [1951] VLR 316. Both Ball v McIntyre and Worcester v Smith were cited by the High Court with apparent approval in Monis v The Queen (2013) 249 CLR 92.

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21 Note discussion of Stutsel v Reid (1990) 20 NSWLR 661 at p 80 as to the presence of other persons in the public place. 22 Brown et al., above n 1, 522. 23 See also Dowse v New South Wales (2012) 226 A Crim R 36, 45 and Magee v Delaney (2012) 39 VR 50, 79. 24 See also Police v Atherton [2010] SASC 87 and Police v McLeod [2011] SASC 160 where Pfeifer was applied in the context of ‘disorderly behaviour’ charges under SOA s 7(1)(a). 25 See Julia Quilter and Luke McNamara, ‘Time to Define “The Cornerstone of ­Public ­Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534, 555–61. 26 Police v Smithson (1988) 8 Petty Sessions Review 3709. 27 Evans v Ewels [1972] 2 All ER 22. 28 In Victoria, there is also a summary offence of ‘wilful injury or damage to property’ where the value of the injury done is under $5000: s 9(1)(c) SOA. 29 R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 Petty Sessions ­Review 3669. 30 CB v Director of Public Prosecutions (NSW) (2014) 240 A Crim R 451, 461. 31 See also Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441 where the reasoning in Hammond was applied. 32 This Act commenced operation in New South Wales on 20 February 2009 and replaced offences formerly provided for in ss 9 and 10A SOA (NSW). The Graffiti Control Act 2008 (NSW) was itself substantially revised in 2014. 33 Compare this position to that in the United States of America: see 1st Amendment of the US Constitution. In Victoria, see Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16(1); see also Article 21 of the International Covenant on Civil and Political Rights. Note also that the High Court of Australia has rejected the concept of a ‘freestanding’ freedom of association arising from the Australian Constitution. Constitutional protection of political association may be a corollary of the implied freedom of political communication; see, for example, Mulholland v Australian Electoral Commission (2004) 220 CLR 181; Wainohu v New South Wales (2011) 243 CLR 181; O’Flaherty v City of Sydney Council (2014) 221 FCR 382; and Tajjour v New South Wales (2014) 88 ALJR 860. 34 See Commissioner of Police v Allen (1984) 14 A Crim R 244, 252; Commissioner of Police v Gabriel [2004] NSWSC 31; and Commissioner of Police v Langosch [2012] NSWSC 499. 35 See Commissioner of Police v Rintoul [2003] NSWSC 662, [5]–[25]. 36 See New South Wales Commissioner of Police v Bainbridge [2007] NSWSC 1015; Commissioner of Police v Ridgewell [2014] NSWSC 1138; Commissioner of ­Police v Jackson [2015] NSWSC 96; NSW Commissioner of Police v Folkes [2015] NSWSC 1887. 37 The common law offences of ‘riot’, ‘rout’ and ‘affray’ have been abolished in New South Wales by Crimes Act 1900 (NSW) s 580H, Sch 3(3) and in South Australia by Criminal Law Consolidation Act 1935 (SA) Sch 11. 38 Crimes Act 1900 (NSW) s 93B; see Parhizkar v R (2014) 88 NSWLR 647. 39 Crimes Act 1900 (NSW) s 93A; SOA (NSW) s 11A(7).

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40 Cases addressing the offences of riot, affray and/or violent disorder include Colosimo v DPP (NSW) (2005) 64 NSWLR 645; Police v Jessen (2011) 112 SASR 1; R v Hawi (No 18) [2011] NSWSC 1664; R v Abdollahi (No 12) (2013) 228 A Crim R 476; and Police v Forbes [2015] SASC 94. 41 In Victoria, the maximum penalties for common law offences, including ‘riot’ and ‘affray’, are set out in the Crimes Act 1958 (Vic) s 320. 42 Taylor v DPP [1973] AC 964 at 989 per Lord Reid; see also DPP (Vic) v Russell [2014] VSCA 308. 43 Where it is originally stated that ‘riot’ involves the unlawful assembly of twelve persons to disturb the peace—William Blackstone, Commentaries on the Laws of England, Volume IV (1st edn, 1769) 142–3. 44 Brown et al., above n 1, 572. 45 Coleman v DPP (2000) 49 NSWLR 371, 379 [41]–[42]. 46 See Jitjarden v Thompson (1995) 38 NSWLR 611. 47 See SOA (NSW) s 20.

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OFFENCES AGAINST THE PERSON

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ASSAULT AND AGGRAVATED ASSAULT COVERED IN THIS CHAPTER In this chapter, you will learn about: • the conduct and mental elements of an ‘assault’ • the issue of consent in assault • sporting contests—the limits of consent to assault • defences to assault • aggravated forms of assault • the offences of stalking and intimidation • restraining orders—domestic and other forms of personal violence.

CASES TO REMEMBER Zanker v Vartzokas (1988) 34 A Crim R 11 R v Brown [1994] 1 AC 212

STATUTES TO REMEMBER Crimes Act 1900 (NSW) ss 27–61 Criminal Law Consolidation Act 1935 (SA) ss 5AA, 19AA–24, 29A Crimes Act 1958 (Vic) ss 16–31A, 320 Crimes (Domestic and Personal Violence) Act 2007 (NSW) Family Violence Protection Act 2008 (Vic) Intervention Orders (Prevention of Abuse) Act 2009 (SA) Personal Safety Intervention Orders Act 2010 (Vic) Summary Procedure Act 1921 (SA) Part 4 Div 7 ss 99–99L Criminal Procedure Act 1986 (NSW) ss 289C–289S

INTRODUCTION When you think about what an ‘assault’ is in everyday usage, it is likely that the image that comes immediately to your mind is of a person punching, kicking or otherwise striking another person. The scenario on the following page is based on the facts of the case of R v Abboud [2005] NSWCCA 251 and illustrates the practical reality of what constitutes an ‘assault’ in the context of the criminal law. In fact, there are several acts of ‘assault’ by Daniel upon Vicki that can be identified in these facts, involving both

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IMAGINE THIS SCENARIO Vicki and Daniel had lived in a de facto relationship for about six years. Daniel often was violent towards Vicki, particularly when he had been drinking alcohol. On one occasion an argument developed between Daniel and Vicki because she wanted to go to sleep and Daniel wanted her to stay awake. In response to this disagreement, Daniel yelled at Vicki, ‘You’ll do what I want, you fuckin’ bitch’, and he pulled Vicki up by her arms from a lying position and hit her in the left side of her ribs, fracturing one of them. About a week after this incident, Vicki and Daniel were involved in another argument in the bedroom during which there was significant verbal abuse from each of them towards the other. Eventually Vicki asked Daniel to leave, to which he replied: ‘I am not going anywhere. I’ll be your worst nightmare’. Daniel then yelled further abuse at Vicki, pushed her in the chest with his right hand, causing her to fall backwards onto the bed, and then he punched her in the head three times. After this, Vicki started crying. Daniel screamed at her, ‘I can’t stand chicks who cry’, and he grabbed her around the neck with both hands and squeezed her throat. While her breathing was restricted, Daniel said, ‘How does it feel to have the breath of life taken out of you? I could kill you as quick as one, two, three, like that’. He then released his grip but quickly grabbed Vicki around the neck again. As a result, Vicki ­struggled to breathe and felt dizzy. Shortly after this incident, Daniel ordered Vicki from the bedroom into the lounge area where their four children were watching television. Daniel yelled at Vicki, ‘Sit down there’, pointing to the mattress where the children were all sitting. Vicki sat down and while she was on the mattress, Daniel approached her and stomped on her legs with both his feet. ­Following this, Daniel kicked Vicki in the legs and in a threatening manner said, ‘The lot of you are gone’. Vicki then got up from the mattress to use the toilet. Daniel became enraged and yelled at her, ‘Where the fuck do you think you’re going, bitch?’ He then grabbed Vicki by the cheeks of her face with both of his hands and bit her on the right side of the face under her eye. After some time, Daniel left the house to go to the pub. Vicki then took the opportunity to flee the house with her children and sought help and shelter in a community refuge.

acts of physical abuse and verbal threats of violence. The physical acts of assault include the fracturing of Vicki’s ribs by hitting her after pulling her up by her arms, pushing and then punching her in the head, grabbing her around the neck and restricting her breathing, kicking her, and biting her on the face. In R v Abboud this conduct was described by the court as ‘common assaults … [among the] most serious offences of this kind’ (at [17]). Also, this scenario serves to illustrate that violence against the person often occurs in the family setting, with such violence mainly perpetrated by men upon women.1

THE LAW OF ASSAULT At common law, an assault is any act committed intentionally, or recklessly, that causes another person to apprehend immediate and unlawful violence. In South Australia, the category of assault is wide enough to also cover ‘accosting and

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impeding’ another person. If force is actually applied, directly or indirectly, and unlawfully, without the consent of the person assaulted, the assault becomes a battery, however slight the force. This definition of assault is consolidated from judicial statements made in various cases, including Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, 444; R v Venna [1976] QB 421; and R v Williams (1990) 50 A Crim R 213. In contemporary usage, ‘battery’ has generally become synonymous with ‘assault’ in the criminal law: McIntyre v The Queen (2009) 198 A Crim R 549, 558; however, see Darby v DPP (NSW) (2004) 61 NSWLR 558, [71]–[72]. In South Australia, where assault is now a statutory offence, there is no separate offence of battery: offences that would once have been assault and battery are all called ‘assault’. First, we will examine the elements of ‘assault’ at common law, which applies in New South Wales and Victoria. Second, the statutory offence of ‘assault’ that now exists in South Australia will be considered separately and compared and contrasted with the common law of ‘assault’.

THE CONDUCT ELEMENT ( ACTUS REUS) OF ASSAULT At common law the actus reus is the unlawful contact in applying force to another, or the act of creating fear of immediate unlawful contact. When physical contact is made with the body of another person, proof is usually straightforward. Illustrations are provided by the hitting, punching, choking, kicking and biting of the victim in the above scenario. It is also clear that spitting at and contacting the person of another with spittle is a form of contact constituting an assault.2 In relation to the use of threats, the victim must be: (1) put in fear, and (2) the harm threatened must be sufficiently imminent.

A CASE TO REMEMBER Zanker v Vartzokas (1988) 34 A Crim R 11 This South Australian case provides a useful example of an assault by creating fear of imminent unlawful contact. The law of ‘assault’ was codified in South Australia in 2006, but this case, involving a complaint of ‘assault occasioning actual bodily harm’, was decided when the common law was the source for defining assault in that jurisdiction. The decision is still relevant to jurisdictions that source the definition of assault from the common law. In this case, the female victim had accepted a lift from the defendant while he was driving a van. After the victim had rejected the defendant’s offer of money for sexual favours, he refused to let her out of the van and said, ‘I am going to take you to my mate’s house. He will really fix you up’. Accordingly, the victim was effectively imprisoned

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by the defendant, and as to the threat of imminent harm in these circumstances, White J observed (at 18): I think the question is ‘how immediate must the threatened physical violence be after the utterance of the threat which creates the fear?’ Put in that way, it can readily be appreciated that the fear is a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of the utterance … The young woman here reasonably believed in the defendant’s intention and power to inflict violence in due course with the help of his ‘mate’. Instead of striking out … she jumped out.

The case of Knight (1988) 35 A Crim R 314, also deals with this requirement of a threat of imminent harm in different factual circumstances. The New South Wales Court of Criminal Appeal held that an assault could be committed by telephone, provided that the threat made was one where the victim apprehended immediate unlawful contact. In the particular circumstances in Knight, however, this requirement was not established as the threats made by Knight, the caller, were not of immediate unlawful contact. Lee J described them (at 318) as ‘mere threats which may have been executed at any time, if at all’. Overall, the authorities clearly provide that words alone can constitute an assault where they create an apprehension of unlawful and imminent physical contact. 3 This characterisation of the words as an assault depends heavily on the particular context and circumstances in which they are spoken.4

THE ISSUE OF ‘CONSENT’ TO ASSAULT AND ­SPORTING CONTESTS ‘An assault, with consent, is not an assault at all’.5 This simple statement summarises the general rule that if there is consent to physical contact by the ‘victim’, there cannot be an assault. The requirement that the physical contact or threat of contact be ‘unlawful’ cannot be established if the alleged ‘victim’ consents to such contact. This rule, which applies primarily to common assaults that do not cause harm, does need qualification in certain circumstances, and exceptions have developed, which seemingly fall under two broad heads, with the clear possibility that further exceptions could develop in the future. The first exception is in relation to the level of harm. While the criminal law recognises that people must be able to consent to some forms of conduct that cause ‘actual bodily harm’ or (in South Australia) ‘harm’, on the basis of public policy, consent to conduct which causes actual bodily harm is not generally recognised outside such contexts. If the assault causes ‘actual bodily harm’ or (in South Australia) ‘harm’, then consent to that type of harm can be immaterial for the purposes of establishing criminal responsibility for ‘assault’. 6 The principle that

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a sound policy basis must be available for consent to these forms of harm to be recognised by the common law is exemplified in the following words of Lord Lane CJ in the English Court of Appeal: [I]t is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.7

The second exception is on the basis of public policy. The ability to lawfully consent to harm is vitally important in order for people to be able to have necessary and even life-saving surgery. Without the capacity to consent to harm, many forms of contact sport would be impossible. In South Australia, s 22 Criminal Law Consolidation Act 1935 establishes a presumption against consent in relation to assaults that cause ‘harm or ‘serious harm’, but recognises consent to harm or serious harm in some religious contexts, in therapeutic contexts, for fertility control, and in the context of sports. It also articulates principles to be applied in considering whether further exceptions might be available. Even if there is consent to harm, judicial emphasis has been placed on protecting the community (particularly vulnerable sections of it) from a culture of violence, and on maintaining civilised standards.8

A CASE TO REMEMBER R v Brown [1994] 1 AC 212 In this case, the House of Lords had to decide where to draw the line between harm that is a matter of personal choice (to which a person can give lawfully recognised consent) and harm that is properly the concern of the criminal law (in which case consent given by a person will not be recognised by the courts). The case addressed assault-type offences committed as a result of consensual sadomasochistic encounters among a group of men. In the majority reasoning of Lord Templeman at 236, it is clear that heavy reliance was placed on public policy to determine that consent was no defence in the particular circumstances: In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of ­sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in ­offences … Society is bound to protect itself against a cult of violence. ­Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.

The dissenting Lords placed a much higher emphasis upon the individual’s rights to privacy and self-determination.

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It is not apparent from the cases as to precisely when consent to harm will be a defence in the prosecution of an assault-type offence. There is a focus on the degree of harm caused,9 but, depending on the particular context and surrounding circumstances, that will not always be determinative.10 In the separate context of sporting contests, which the Court of Appeal specifically excluded from its considerations about fistfights in Attorney-General’s Reference No 6 of 1980 [1981] 1 QB 715, there is a significant question as to how far consent to harm can be taken. The general proposition is that when you participate in a sporting contest you consent to the inevitable ‘rough and tumble’ within the rules of the game. However, as Mahoney JA observed in Canterbury Bankstown RLFC v Rogers; Bugden v Rogers (Unreported, CA (NSW), 24 September 1993): The possibility of injury or even death is inherent in the playing of such sport not merely illegitimately but also legitimately. Society has accepted the possibility of these things … But there is a fundamental difference between what is involved as an accidental ­incident of these sports and the deliberate attempt to hurt or injure a participant and doing so in a manner illegitimate under the rules of the sport or the conventional codes of conduct.

In the case of R v Stanley (Unreported, NSWCCA, 7 April 1995) the defendant had raised his elbow and fractured the jaw of an opposing player in a rugby league match. The defendant’s conviction for ‘maliciously inflicting grievous bodily harm’ under s 35(b) of the Crimes Act 1900 (NSW) (as it then was) was upheld on appeal and, importantly, Levine J (in the leading judgment) stated (at 6): the player consents to acts of violence and the risk of injury flowing therefrom, provided that those acts occurred during the course of play in accordance with the rules and usages of the game. Players are not taken as consenting to the malicious use of ­violence intended or recklessly to cause grievous bodily injury.11

In summary, in the sporting arena, the authorities suggest that the infliction of ordinary and reasonable violence that is incidental to the sport in question (particularly those sports involving body contact and tackling) has the implied consent of participants, thus precluding an assault from occurring. It seems, however, that a participant cannot consent to really serious bodily harm (in South Australian law, the closest concept is ‘serious harm’). The issue becomes one of ‘the intention of the parties and the mode and conditions of the particular encounter’. 12 With the concurrent operation of sporting disciplinary tribunals, where numerous incidents from the playing arena for various codes of sport are dealt with on a weekly basis during the season, the incidence of criminal charges of assault arising from sporting contests is very low.13

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THE MENTAL ELEMENT ( MENS REA) OF ASSAULT At common law the mens rea can be established by proving it is the intention of the defendant to make unlawful contact by applying physical force to the victim, or an intention to create a fear of immediate unlawful contact in the mind of the victim. Alternatively, the mental element in ‘assault’ can be established by proof of recklessness on the part of the defendant to making unlawful physical contact with the victim or creating a fear of such contact in the mind of the victim. In South Australia, the statutory assault offence can only be committed intentionally; there is no category of reckless assault. In relation to the mental element of ‘assault’ at common law, Badgery-Parker J in the leading judgment in R v Williams (1990) 50 A Crim R 213, held (at 220): [I]t is well established that such actual application of force may be deliberate, that is the assailant intended to strike the complainant, or reckless, that is the assailant struck out foreseeing or knowing that he might hit somebody and not caring if he did.

In all assault-type offences against the person that do not result in fatal injury to the victim in New South Wales and Victoria, recklessness is ‘confined to action where the relevant consequences are adverted to even if not desired’.14 It is, perhaps, best explained as ‘a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm—but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted’.15 In contrast, in South Australia, a statutory assault under s 20 Criminal Law Consolidation Act 1935 cannot be committed recklessly. However, the more serious offences of causing harm and causing serious harm can be committed recklessly and this term is defined in s 21 Criminal Law Consolidation Act 1935 as follows: a person is reckless in causing harm or serious harm to another if the person— (a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and (b) engages in the conduct despite the risk and without adequate justification.

The mental element and the conduct element must coincide in time, although where there is ‘a continuing act’ the mental element may be superimposed after the act has been commenced, as illustrated in the case of Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, considered in Chapter 2.

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LEGISLATIVE PROVISIONS FOR ASSAULT The offence of common assault is found in the following legislative provisions: •• Crimes Act 1900 (NSW) s 61 •• Crimes Act 1958 (Vic) s 320 •• Criminal Law Consolidation Act 1935 (SA) s 20. In New South Wales, it is provided that common assault is an offence and any person convicted of the offence is liable to imprisonment for a maximum of two years. It is an indictable offence,16 but is usually dealt with summarily by a Local Court.17 In South Australia, a statutory definition for assault is provided; this has made some significant changes to what constitutes an assault in this jurisdiction although it is clear that some parts of the definition are derived from the common law: 20 Assault (1) A person commits an assault if the person, without the consent of another person (the victim)— (a) intentionally applies force (directly or indirectly) to the victim; or (b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or (c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that— (i) the person who makes the threat is in a position to carry out the threat and intends to do so; or (ii) there is a real possibility that the person will carry out the threat; or (d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or (e) accosts or impedes another in a threatening manner. (2) However— (a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and (b) conduct that is justified or excused by law cannot amount to an assault. (3) A person who commits an assault is guilty of an offence. Maximum penalty: (a) for a basic offence—imprisonment for 2 years; (b) for an aggravated offence (except one to which paragraph (c) applies)— imprisonment for 3 years; (c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.

The significant changes made to the common law of assault by this statutory provision have been identified at earlier points in this chapter when comparing and

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contrasting to the common law. In summary, some categories of reckless assault are removed by s 20(1)(a) and (b), the definition does not include immediacy as an element of assault by threat in s 20(1)(c) and common law attempts have been incorporated into the definition by s 20(1)(d). In Victoria, apart from the indictable offence of ‘common assault’, for which a maximum of five years imprisonment is provided, there is a summary ‘common assault’ offence in s 23 of the Summary Offences Act 1966 (Vic) carrying a maximum of three months’ imprisonment or fifteen penalty units. Both the summary and indictable common assault offences in this jurisdiction are composed of the same elements as at common law.

DEFENCES TO ASSAULT Apart from ‘defences’ based on insufficient evidence to prove either or both the mens rea and actus reus of assault, other defences are available to a defendant depending on the specific circumstances of the case. A defence of lawful correction developed at common law where it was lawful for a parent or person in loco parentis18 to correct a child in a reasonable manner having regard to the instrument used and the manner in which the correction was administered.19 This still applies in Victoria and may apply in South Australia,20 although specific child protection legislation in these jurisdictions should also be consulted. The common law has been modified in New South Wales, where the Crimes Act 1900 (NSW) s 61AA provides: 61AA (1)  In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

Perhaps more significant are the defences of self-defence, defence of another and defence of property, which are all available to an allegation of assault. At common law, self-defence provides a complete defence and the test is whether the accused believed on reasonable grounds that it was necessary to do what they did to repel an attack or to defend their property or another person.21 The common law now only

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applies in Victoria and these defences have been modified by statute in the other jurisdictions.22 Self-defence and the related defences will be dealt with separately in more detail in Chapter 11.

AGGRAVATED ASSAULTS—ADDITIONAL ELEMENTS/ SEPARATE OFFENCES Common assault is often referred to as a ‘building block’ offence in that it can be supplemented to create what are considered to be more serious ‘assault-type’ offences. These are compound offences usually grouped under the heading of ‘aggravated assaults’ and various factors are identified by the law as constituting a form of aggravation. Table 5.1 contains a comparative schedule of the legislative provisions for a range of aggravated assault offences in the New South Wales, Victorian and South Australian jurisdictions. TABLE 5.1 Aggravated Assault offences in the common law jurisdictions AGGRAVATING FACTOR TO ‘ASSAULT’

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)

CRIMINAL LAW ­CONSOLIDATION ACT 1935 (SA)

Injury—actual bodily harm

s 59(1)

s 18—causing injury intentionally or recklessly

s 20(4) (assault causes ‘harm’) ss 24(1)–(2)— intentionally or recklessly causes ‘harm’

Injury—wounding

ss 33(1)(a)—with intent to do grievous bodily harm, 35(4)— recklessly

No specific provision—use ss 16, 17 or 18 depending on extent of injury

No specific provision— use ss 23 or 24 depending on extent of harm

Injury—grievous bodily harm (gbh)

ss 33(1)(b)—with intent to do gbh, 35(2)—recklessly, 54—negligent act/omission

ss 15A—causing ‘serious injury’ intentionally in circumstances of gross violence, 15B— causing ‘serious injury’ recklessly in circumstances of gross violence, 16—causing ‘serious injury’ intentionally, 17—recklessly, 24—negligently

ss 23(1), (3) —intentionally or recklessly causes ‘serious harm’

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AGGRAVATING FACTOR TO ‘ASSAULT’

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)

CRIMINAL LAW ­CONSOLIDATION ACT 1935 (SA)

Victim—police officer

ss 58, 60

s 31(1)(b)

ss 5AA(1)(c), 29A (shooting at); s 6 Summary Offences Act 1953 (SA)

Victim—law enforcement officer

s 60A

s 31(1)(ba)

s 5AA(1)(c)

Victim—child

s 42 (at birth)

N/A

s 5AA(1)(e)

Victim—member of the clergy

s 56

N/A

N/A

Victim—school staff or student

s 60E

N/A

N/A

Further specific intention—to murder (kill)

ss 27–30

ss 20, 25

s 31(1)(a)

Further specific intention—to commit indictable offence

ss 33B, 58

s 31(1)(a)

s 270B

Further specific intention—to resist or prevent apprehension

ss 33(2), 33B, 58

ss 30, 31(1)(c)

N/A

Weapon or instrument

ss 33A, 33B

ss 29, 31A

ss 20(3)(c), 20(4)(c), 31(1)(b)

Dangerous substances

ss 38, 38A, 39, 41, 41A, 46, 47, 48

s 19

ss 20(3)(c), 20(4)(c), and 29(1)–(3) depending on extent of harm intended.

In company

ss 35(1), (3), 59(2)

ss 15A(2)(b), 15B(2)(b)

s 5AA(1)(h)

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In South Australia, the more serious non-fatal offences against the person are generally separate offences and not specifically built upon the statutory assault offence except where s 5AA Criminal Law Consolidation Act 1935 is used for the aggravating factor as noted in Table 5.1 (see pages 112–13). The following commentary discusses the key categories of ‘aggravation’ using New South Wales provisions as the primary examples. First, particular injuries may be occasioned where the assault involves unlawful physical contact. The law recognises different gradations of injury or harm. At the less serious end of the spectrum is actual bodily harm, which has been defined at common law to have ‘its ordinary and natural meaning of actual bodily injury and includes any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent but must … be more than merely transient or trifling’.23 Actual bodily harm can encompass psychiatric injury where there is medical or other expert evidence available to support an allegation of injury at this level.24 The elements are an assault and the occasioning of actual bodily harm as a consequence—there is no requirement to prove a specific intent to cause actual bodily harm.25 In South Australia, the term ‘harm’ is used instead of ‘actual bodily harm’ although its meaning is not identical. ‘Harm’ ‘means physical or mental harm (whether temporary or permanent)’.26 Further, ‘mental harm’ is defined as ‘psychological harm … [not including] emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’. As to ‘physical harm’ it is taken to include ‘(a) unconsciousness; (b) pain; (c) disfigurement; (d) infection with a disease’, therefore incorporating the ordinary meaning of ‘physical harm’ as bodily injury as well as the other conditions specifically set out in Criminal Law Consolidation Act 1935 s 21. In Victoria, the comparable offence is one of causing injury, which is defined to include ‘(a) physical injury; or (b) harm to mental health whether temporary or permanent’. The terms ‘physical injury’ and ‘harm to mental health’ are both further defined in terms substantially similar to the South Australian legislation outlined above, although the Victorian definition of ‘physical injury’ also refers to an ‘impairment of bodily function’.27 The next and more serious category of particular injury is wounding; this is only specifically used in New South Wales. A wound consists of an injury involving a breaking through the whole skin—that is, it must penetrate below the epidermis layer of skin.28 Where the skin of a bodily cavity, such as the mouth, nostril or anus, is continuous with the skin on the outside of the body, a flow of blood must come from a rupture of the skin within the bodily cavity.29 The most serious category of particular injury on the spectrum is grievous bodily harm.30 At common law this is ‘really serious bodily harm’ and it is not

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necessary that the harm should be either permanent or dangerous. 31 Statutory definitions have extended the meaning of this phrase. For example, in Crimes Act 1900 (NSW) s 4, it is taken to include ‘(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any harm, and (b) any permanent or serious disfiguring of the person’. In Victoria and South Australia, the terms ‘serious injury’ and ‘serious harm’, respectively, have replaced ‘grievous bodily harm’. 32 In South Australia, ‘serious harm’ is defined exhaustively to mean ‘(a) harm that endangers a person’s life; or (b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or (c) harm that consists of, or results in, serious disfigurement’. Second, another factor of aggravation is that the victim is in a special category by virtue of their occupation or other status. These aggravated assault offences are largely confined to the Crimes Act 1900 (NSW), although the general provision in s 5AA of the Criminal Law Consolidation Act 1935 (SA) for aggravated offences extends to this category. Notably, police officers and other law enforcement officers while acting in the execution of their duty are included in this category of aggravated assaults. The term ‘law enforcement officer’ is defined very broadly in Crimes Act 1900 (NSW) s 60AA and encompasses correctional officers, probation and parole officers, juvenile justice officers, Crown prosecutors, legal practitioners employed by the Director of Public Prosecutions and sheriff’s officers. In determining whether a police officer is acting in the execution of their duty, the courts have given this phrase a broad operation: A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.33

Sections 60(4) and 60A(4) of the Crimes Act 1900 (NSW) extend when an action is taken to be carried out while a police officer or a law enforcement officer is acting in the execution of their duty to situations where the action is carried out ‘(a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer’ even though the police officer is not on duty at the time the act is carried out. Similarly in the Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(c)(ii) extension is provided to assaults committed ‘in retribution for something the offender knows or believes to have been done by the victim in the course of his or her official duty’. Both s 60 and s 60A of the Crimes Act 1900 (NSW) provide a graded scale of offences against

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police and law enforcement officers where the act also causes injury to the victim. 34 A further aggravating feature that has been added to s 60 is where the assault and/ or injury to the police officer occurs during a public disorder.35 Section 58 is the original provision dealing with assaults on constables and other peace officers, but it has largely been superseded by ss 60 and 60A. In Victoria, there is an offence of assaulting an emergency worker on duty under s 31(1)(b) Crimes Act 1958; the term ‘emergency worker’ is defined in s 10AA of the Sentencing Act 1991 (Vic) to include police officers, ambulance officers, employees of the Metropolitan Fire and Emergency Services Board and the Country Fire Authority, and members of the Victoria State Emergency Service.36 Other special categories of victim in New South Wales include school students or staff members of a school while attending a school, 37 members of the clergy, and children at the time of birth. The general aggravated offence provision in the Criminal Law Consolidation Act 1935 (SA) applies to assault offences and includes child victims under the age of twelve years, victims over the age of sixty years, 38 victims who are a spouse, domestic partner or child of the offender 39 and victims who are in a position of particular vulnerability because of physical or mental disability.40 Third, assaults with further specific intention are included as aggravated forms of assaults. These apply where the defendant has the mens rea for common assault, supplemented by an additional intention. In all common law jurisdictions, it is an offence to assault a person with the intention of committing another offence (usually indictable). The most serious forms of aggravated assault in this regard are assaults with intent to commit murder, which are provided for separately in each jurisdiction. The acts range from administering poison, wounding and causing grievous bodily harm to shooting at or attempting to drown, suffocate or strangle a person. 41 In each case the further specific intention must be to kill, as intent to cause grievous bodily harm or recklessness as to the possibility of death are not sufficient states of mind for attempts to murder.42 There are lesser offences of assault (by wounding or causing grievous bodily harm) with intent to do grievous bodily harm, such as Crimes Act 1900 (NSW) s 33(1), which still carry a significant maximum penalty of twenty-five years imprisonment. The other offences for which a further specific intention exists when an assault is carried out need not be as serious as murder or causing grievous bodily harm. There are generic offences of assault with intent to commit any indictable offence in all jurisdictions. Another prescribed specific intention is committing an assault with the intention of resisting or preventing a lawful arrest or detention. The prosecution must establish that the arrest which the defendant was attempting to resist or prevent would have,

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in fact, been the exercise of a legal right.43 The belief of the defendant as to the lawfulness of the arrest is not material. Fourth, assaults can be aggravated by the use or threatened use of a weapon or an offensive instrument. ‘Offensive weapon or instrument’ is defined in Crimes Act 1900 (NSW) s 4 to mean ‘a dangerous weapon or any thing that is made or adapted for offensive purposes or any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm’. This is a codification of the common law.44 Guns, pistols and daggers are considered to be offensive weapons by their very nature whereas other articles, such as razors, knives and belt buckles, may become offensive weapons when carried with the intention to use them for such a purpose.45 There are offences in this category that contain a combination of aggravating features, such as discharging a firearm with intent to cause grievous bodily harm or with intent to resist or prevent lawful arrest or detention. 46 An offensive instrument has been held to include a motor vehicle driven at a police officer. Gleeson CJ’s statement in considering s 33B of the Crimes Act 1900 (NSW) in R v Hamilton (1993) 66 A Crim R 575 (at 577) is instructive: The question whether an object or article is an offensive instrument raises for consideration the nature of the object, the uses of which it is capable, and the intention of the person who is using it on the occasion in question. An object which in its nature and in its ordinary use is not offensive may become an offensive instrument by reason of the use to which a person puts it and the intent which accompanies such use.

In South Australia, there is an extended definition of ‘offensive weapon’ in s 5 Criminal Law Consolidation Act 1935 (SA) as follows: ‘offensive weapon’ means— (a) an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including— (i) a firearm or imitation firearm (ie an article intended to be taken for a firearm); or (ii) an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or (b) an article or substance that a person has— (i) for the purpose of causing personal injury or incapacity; or (ii) in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity.

This can be applied as an aggravating factor to various assault offences. Fifth, assaults using dangerous substances are another category of aggravation and are largely found in the Crimes Act 1900 (NSW), although the extended definition of ‘offensive weapon’ in the Criminal Law Consolidation Act 1935 (SA) covers a

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similar range of dangerous substances. Examples from the Crimes Act 1900 (NSW) include the use of intoxicating substances47 (ss 38–41), poisons (ss 39–41A), gunpowder (s 46), explosive substances or corrosive fluids (ss 47–48). Also, it is a specific offence to set a trap that is capable of inflicting grievous bodily harm or with intent to inflict such harm.48 Sixth, in New South Wales the fact that a defendant was ‘in company’ with another or other persons has been added as an aggravating factor to a number of assault-type offences (for example, Crimes Act 1900 ss 35(1) and (3), 59(2)). This aggravating factor is also found in s 5AA(1)(h) of the Criminal Law Consolidation Act 1935 (SA) and includes persons who are children as those whom an offender is capable of being ‘in company’ with. The phrase ‘in company’ is not defined in the legislation. At common law and under s 5AA(1)(h) ‘in company’ means that the victim is confronted by the combined force or strength of two or more people acting as accomplices.49 Finally, there are assaults that are aggravated by reason of a sexual component. There are a significant number of sexual assault offences in the common law jurisdictions and these will be the subject of separate detailed analysis in Chapter 6.

STALKING AND INTIMIDATION Reforms of the law in the broad area of assault-type offences have included the creation of statutory offences of ‘stalking’ and ‘intimidation’. Arguably, this category of offences was created to overcome the difficulty in proving the actus reus of assault where the immediacy of the threat of unlawful physical contact is open to question. Essentially these contemporary offences encompass behaviour that falls short of an assault but that is still menacing, distressing or intimidating for the person who is the object of the specific conduct. ‘Stalking’ is proscribed as an offence in the following legislative provisions: •• Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13 •• Crimes Act 1958 (Vic) s 21A •• Criminal Law Consolidation Act 1935 (SA) s 19AA. A useful basic definition is found in Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 8, whereby stalking ‘includes the following of a person about or the watching or frequenting the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity’. The stalking must be done with the intention of causing the other person to fear physical or mental harm (s 13). Stalking, therefore, involves a pattern of predatory behaviour that is intended to make the victim fearful of being harmed in some way by the person engaging in the harassing conduct. More extensive definitions of stalking are contained in the Victorian and South Australian

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provisions referred to above. These include using electronic forms of communication to persistently contact, or publish unauthorised material about, a person with the intention of causing physical or mental harm or arousing fear in the victim for their own safety or that of any other person.50 ‘Intimidation’ is defined separately in s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to mean: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or ­damage to any person or property.

The conduct encompassed by this definition of ‘intimidation’ is essentially incorporated in the conduct defined to amount to ‘stalking’ in both Victoria and South Australia. Such conduct is regarded very seriously by the legislature as, depending on the nature of the stalking, a significant maximum penalty of five years imprisonment is available in most jurisdictions, apart from Victoria, where a ten-year maximum is prescribed.

DOMESTIC VIOLENCE AND RESTRAINING ORDERS Assault-type offences have underpinned the development of statutory provisions regulating domestic and other forms of personal violence. There has been significant legislative reform and activity in this area since the early 1980s, following the Report of the NSW Task Force on Domestic Violence (1981), which highlighted the legislative void in relation to a suitable response to the reality of domestic violence. The former Part 15A of the Crimes Act 1900 (NSW), headed ‘Apprehended Violence’, which provided a legislative scheme for dealing with domestic and personal violence, was replaced by the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which commenced operation on 10 March 2008. It is a comprehensive legislative scheme to provide a form of protection for persons from domestic and personal violence. It distinguishes between those persons who are in or have had a domestic relationship51 and other persons, so that either an apprehended domestic violence order (Part 4) or an apprehended personal violence order (Part 5) can be considered where a person fears violence or intimidatory or stalking conduct from another person. In other jurisdictions, there are similar legislative schemes dealing with domestic and other forms of personal violence. In South Australia, the scheme under the Intervention Orders (Prevention of Abuse) Act 2009 (SA)52 distinguishes between

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‘domestic abuse’ (s 8(8)) and ‘non-domestic abuse’ (s 8(9)) with reference to any ongoing or former relationship between the person seeking the order and the defendant. Section 8(2) defines an act of abuse as ‘an act … [that] results or is intended to result in (a) physical injury; or (b) emotional or psychological harm; or (c) an unreasonable and non-consensual denial of financial, social or personal autonomy; or (d) damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person’; this potentially encompasses a wider range of behaviours than the New South Wales scheme.53 In Victoria, the Family Violence Protection Act 2008 (Vic) provides for the making of final orders (ss 74, 76) and interim orders (s 53) to protect family members from family violence. In addition, the Personal Safety Intervention Orders Act 2010 (Vic) allows a person who is not in any form of domestic relationship with a respondent to seek interim (s 35) and final (s 61) personal safety intervention orders where the respondent has committed ‘prohibited behaviour’54 against a person or stalked the person and is likely to do so again.55 Overall, the schemes have been designed to provide a mechanism, by way of a restraining order (known variously as an intervention order or an apprehended violence order depending on the particular jurisdiction), to protect a person in a domestic relationship or the subject of some form of personal violence from being assaulted, harassed, stalked or intimidated by another person. The scheme is based on a civil application process and the procedural matters are fairly similar across the various jurisdictions, with the process initiated by application or complaint, or by telephone in urgent circumstances. See Table 5.2 for a comparative schedule of the legislative provisions relating to the application procedures and to the making, variation and enforcement of protection orders. TABLE 5.2 Restraining/intervention/apprehended violence order procedures in the common law jurisdictions PROCEDURAL STEP

CRIMES (­ DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 (NSW)

FAMILY VIOLENCE PROTECTION ACT 2008 (VIC)/PERSONAL SAFETY INTERVENTION ORDERS ACT 2010 (VIC)

INTERVENTION ORDERS (PREVENTION OF ABUSE) ACT 2009 (SA)/ SUMMARY ­PROCEDURE ACT 1921 (SA)

Interim order

Part 6, s 40

Part 4 Div 2 (ss 53–60)/ Part 3 Div 3 (ss 35–43)

s 21/N/A

Application/ complaint

Part 10 ss 47–71

Part 4 Div 1 (ss 42–52)/ Part 3 Div 1 (ss 12–23)

s 20/ss 99AA, 99AAC, 99J

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PROCEDURAL STEP

CRIMES (­ DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 (NSW)

FAMILY VIOLENCE PROTECTION ACT 2008 (VIC)/PERSONAL SAFETY INTERVENTION ORDERS ACT 2010 (VIC)

INTERVENTION ORDERS (PREVENTION OF ABUSE) ACT 2009 (SA)/ SUMMARY ­PROCEDURE ACT 1921 (SA)

Provisional orders

Part 7

Part 3 Div 2 (ss 24–39)/ N/A

ss 18–19/N/A

Grounds for making order

ss 16–17 (domestic) ss 19–20 (personal)

ss 74, 76/s 61

s 6/ss 99AA(1), 99AAC(2) s 28/s 99K (burden of proof)

Terms of order

Part 8

Part 4 Div 5 (ss 79–95)/ Part 3 Div 7 (ss 65—75)

ss 12–15/ss 99AA(2), 99AAC(5)

Consent order

s 78

s 78/s 64

s 23(3)/N/A

Service of order

s 77

s 113/s 90

ss 18(4), 21(8), 23(5)/s 99E

Duration

s 79

Part 4 Div 7 (ss 97–99)/ Part 3 Div 9 (ss 77–79)

s 11/N/A

Variation/ revocation

Part 10 ss 72–75

Part 4 Div 8 (ss 100–105)/ Part 3 Div 10 (ss 80–82)

ss 26–27/s 99F

Reciprocal arrangements

Part 13

Part 10 Div 1, Part 10 Div 2 (NZ)/ Part 9 Div 1, Part 9 Div 2 (NZ)

s 30/s 99H

Breach/ contravene order

s 14

ss 123, 123A/s 100

s 31/s 99I

Ultimately, using the New South Wales scheme as the standard, the making of a final order by the court is based on the requirement that the court must be satisfied on the balance of probabilities (the civil standard of proof) that a person has reasonable grounds to fear and in fact fears the commission of a personal violence offence against them by another person or that the other person will engage in conduct that intimidates or stalks the person seeking the order.56 The order can be specified to be in force for as long as the court considers necessary to ensure the safety and protection of the protected person. The terms of the order will be

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directed to prohibiting or restricting the behaviour of the defendant in such ways or to such extent as appears necessary or desirable to the court to ensure the safety and protection of the person in need of protection (s 35). The courts have said that restrictions and prohibitions should be ‘complete, certain and capable of being obeyed and a defendant is entitled to know precisely what he may or may not do in compliance with the order’.57 These may include not approaching the protected person and not accessing any premises where they work or reside, and prohibiting possession of firearms. Consent orders are available in all jurisdictions. These orders are made where the parties each consent to the application for the making of the particular order as found in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78, Family Violence Protection Act 2008 (Vic) s 78 and Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(3). It is a criminal offence in all jurisdictions for a person to breach or contravene a term of a restraining order. Such offences are viewed very seriously by the courts; in New South Wales, if the contravention of the order involves an act of violence against a person, the defendant must be sentenced to a term of imprisonment unless the court otherwise orders and provides reasons for not imposing that sentence. 58 In New South Wales, amendments to the Criminal Procedure Act 1986 (NSW) 59 that commenced on 1 June 2015 have established new procedures for the giving of evidence by domestic violence complainants. These new procedures attempt to avoid re-traumatising victims of domestic violence who give evidence in court. Chapter 6, Part 4B, Div 2 of the Criminal Procedure Act 1986 (NSW) now permits complainants in proceedings for domestic violence offences to give evidence in chief in the form of a ‘recorded statement’ made by the complainant to police investigating the alleged offence.60 The ‘recorded statement’ can comprise video and/or audio recordings of representations made by the complainant in response to questioning by the police; these recordings must be made with the informed consent of the complainant as soon as practicable after the commission of the alleged offence. 61 The prosecutor determines whether evidence is given by recorded statement, and must take into account the wishes of the complainant, any evidence of intimidation of the complainant by the accused and the objects of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in making that determination.62 Recorded statements can be used in trials on indictment, at summary and committal hearings and in concurrent or related proceedings pertaining to apprehended domestic violence orders.63 Defendants are provided with access to recorded statements prior to proceedings.64 The complainant must be available for cross-examination and reexamination during proceedings.65 These provisions supplement other procedures relating to vulnerable persons and the giving of evidence by the complainant in some sexual offence proceedings which are addressed in Chapter 6.66 In South Australia, similar procedures are available to young children and people with a disability that

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affects their capacity to give evidence at trials for serious offences against the person and offences relating to intervention and restraining orders.67

Important references For more extensive coverage of the substantive law relating to assault, aggravated assault, and apprehended violence intervention and restraining orders, you should consult the ­following textbooks. Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014) Chapter 6 ‘Laws of Assault’ 274–315. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 10 ‘Offences Against the Person’ 561–608. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 7 ‘Assault’ 585–656. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 6 ‘Non-Fatal Offences Against the Person’ 189–240. Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 5 ‘Non Fatal Offences against the Person’ 204–42. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004) Chapter 4 ‘Assault and Related Offences’ 152–202.

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 Succinctly define an ‘assault’ as applicable in your state jurisdiction. What is the source of this definition? 2 How do the offences of stalking and intimidation (where applicable) differ from an assault? 3 Identify four categories that provide additional elements to the basic offence of assault so that aggravated assault offences are created. 4 What has to be established before a court will grant a restraining or equivalent order to a complainant?

Problem questions Assume the following facts. Mitch and Rachael shared a villa for fourteen months. They developed a sexual relationship. However, Mitch became obsessed with Rachael and extremely possessive of her. This resulted in Rachael becoming disenchanted with the relationship and she asked Mitch to move out of the villa. Reluctantly Mitch agreed to move out, parting with the words, ‘You’ll regret this. I’ll make sure you pay for humiliating me’. When he said this, he looked Rachael directly in the eyes and raised up the index finger on his right hand and ran it slowly across his own neck. Over the next few weeks, Rachael saw Mitch at various times parked in his car outside the villa. He also regularly followed her to where she worked at a local restaurant. Mitch would stand outside the restaurant looking in the window at different times of the day and night when Rachael was working. Rachael also attended a local gymnasium and she often saw Mitch following her to the gym in his car, and he would then be waiting outside the gym when she left to go home. Initially, Rachael attempted to gently discourage Mitch from following her but, as it became more annoying, she got angry and berated him outside the restaurant. She said, ‘Leave me alone; stop following me and watching me all the time. It’s over for good!’ Mitch responded by spitting towards Rachael. As she wiped the spittle from her face, Rachael screamed, ‘You’re the one who’ll pay now!’ After this incident, Mitch did not desist, but rather stepped up following and watching Rachael at the various locations. Most recently, Rachael saw Mitch standing outside the restaurant and she thought she saw a silver blade in his hand. With heightened fear for her safety, Rachael decided to report the matter to the local police and provided them with all the above information in relation to the conduct and activities of Mitch from the time of the breakdown of their relationship. 1 Analyse any offences against the person with which the police would be likely to charge Mitch, based on all the information from Rachael. 2 Discuss any other formal action that could be taken by or on behalf of Rachael in relation to her fears for her safety. In your discussion, briefly outline the procedures involved in taking this course of action. For suggested solutions to problem questions, please visit .

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Notes 1 See, for example, Australian Bureau of Statistics, Women’s Safety Australia (1996); Jenny Mouzos and Toni Makkai, Women’s Experiences of Male Violence: Findings from the Australian Component of the International Violence against Women Survey (2004); Duncan Chappell and Sandra Egger, Australian Violence: Contemporary Perspectives II (1995); Kenneth Polk, ‘Changing Patterns of Violence’ in Duncan Chappell and Paul ­Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond (2000) Chapter 6; Russell Hogg and David Brown, Rethinking Law and Order (1998) 43–78; Australian Law Reform Commission (Report No 114) and New South Wales Law Reform Commission (Report No 128), Family Violence—A National Legal Response (2010); Renata Alexander, ‘Women and Domestic Violence’ in Women and the Law in Australia (2010); Australian Bureau of Statistics, ‘Experience of Partner Violence’ (2012 Personal Safety Survey); Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Domestic Violence Trends and Issues in NSW (Report No 46, 2012); Anna Carline and Patricia Easteal, Shades of Grey: Domestic and Sexual Violence against Women (2014). 2 R v Cotesworth (1704) 6 Mod 172; R v Smith (1866) 4 F&F 1066; DPP v JWH ­(Unreported, SC (NSW), 17 October 1997), Hulme J; Stenecker v Police (2014) 120 SASR 18. 3 Barton v Armstrong [1969] SASR 205; R v Wilson [1955] 1 All ER 744. 4 In South Australia, see Criminal Law Consolidation Act 1935 (SA) s 20(1)(c) in relation to the statutory form of ‘assault’ by threatening words or conduct. 5 R v Schloss and Maguire [1897] QLJR 21. See Police v Baker (2015) 123 SASR 468 regarding proving a lack of consent. 6 R v Donovan [1934] 2 KB 498; Attorney-General’s Reference No 6 of 1980 [1981] 1 QB 715; R v Brown [1994] 1 AC 212; R v Emmet (The Times, 15 October 1999 (CA)); Stein (2007) 18 VR 376. In South Australia, see Criminal Law Consolidation Act 1935 (SA) s 22. 7 Attorney-General’s Reference No 6 of 1980 [1981] 1 QB 715, 719. 8 Coney (1882) 8 QBD 534; Attorney-General’s Reference No 6 of 1980 [1981] QB 715; R v Brown [1994] 1 AC 212; cf R v Wilson [1997] QB 47. 9 For an Australian authority, see R v McIntosh [1999] VSC 358. 10 See, for example, the case law relating to consent and the transmission of dangerous diseases such as HIV: R v Dica [2004] QB 1257; R v Barnes [2005] 1 WLR 910; R v Konzani [2005] 2 Cr App R 198; and Neal v R (2011) 32 VR 454. 11 See also Watherston v Woolven (1987) 139 LSJS 366, where a similar finding was made by the South Australian Supreme Court in relation to an incident in an Australian Rules football match where a ‘hit’ behind the play resulted in possibly breaking the victim’s nose or at least causing it to ‘deviate’ from its original shape. 12 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, 343—considering the status of professional boxing matches. 13 See David Thorpe, Antonio Buti, Chris Davies, Saul Fridman and Paul Jonson, Sports Law (2nd edn, 2013) 118–120, 134–136; McAvaney v Quigley (1992) 58 A Crim R 457. 14 MacPherson v Brown (1975) 12 SASR 184, 188. 15 R v Coleman (1990) 19 NSWLR 467, 475. 16 R v Fisher [2002] NSWCCA 188.

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17 Criminal Procedure Act 1986 (NSW) s 268; Sch 1. 18 This is a Latin phrase which translates as ‘in the place (role) of the parent’. See Trischa Mann (ed), Australian Law Dictionary (Oxford, 2nd edn, 2013) 532. 19 R v Miles (1842) 6 Jur 243; R v Griffin (1869) 11 Cox CC 142; Byrne v Hebden [1913] QSR 233; White v Weller [1959] QdR 192; R v Mackie [1973] Crim LR 54. 20 See, for example, R v Terry [1955] VLR 114; W, DL v Police [2014] SASC 102; The Queen v Hughes [2015] VSC 312. Note the general ‘defence’ provisions in Criminal Law Consolidation Act 1935 (SA) s 20(2). 21 Zecevic v DPP (1987) 162 CLR 645. 22 See Crimes Act 1900 (NSW) ss 418–423 and Criminal Law Consolidation Act 1935 (SA) ss 15–15C. 23 R v Donovan [1934] 2 KB 498, 509. 24 Chan-Fook [1994] 2 All ER 552; R v Lardner (Unreported, NSWCCA, 10 September 1998). 25 R v Coulter (1988) 164 CLR 350; R v Williams (1990) 50 A Crim R 213. 26 Criminal Law Consolidation Act 1935 (SA) s 21. 27 Crimes Act 1958 (Vic) s 15. 28 Vallance v R (1961) 108 CLR 56; Devine v R (1982) Tas R 155; R v Shepherd [2003] NSWCCA 351; Osborne v R [2015] NSWCCA 260. 29 C (A Minor) v Eisenhower (1983) 3 All ER 230. 30 See McIntyre v The Queen (2009) 198 A Crim R 549 for a useful judicial discussion of the spectrum of injuries in aggravated assault offences in New South Wales. 31 R v Hunter (1989) 44 A Crim R 93; Haoui v The Queen (2008) 188 A Crim R 331. 32 See Crimes Act 1958 (Vic) s 15 and Criminal Law Consolidation Act 1935 (SA) s 21. 33 DPP Reference No 1: Re K (1993) 118 ALR 596. 34 See s 60(2)–(3) and s 60A(2)–(3). 35 Sections 60(2A) and (3A). 36 Note that Sentencing Act 1991 (Vic) s 10AA(1) provides that a court must impose a custodial sentence when dealing with offenders who commit certain assault offences against emergency workers unless the court finds that a special reason exists under s 10A. 37 Crimes Act 1900 (NSW) s 60E, definitions in s 60D. 38 s 5AA(1)(e),(f). 39 s 5AA(1)(g). 40 s 5AA(1)(j). 41 Crimes Act 1900 (NSW) ss 27–29. 42 Knight v R (1992) 175 CLR 495; R v Belfon [1976] 3 All ER 46. 43 R v Heavey (1965) 84 WN (Pt 1) (NSW) 248. 44 R v Petrie [1961] 1 WLR 358. 45 Considine v Kirkpatrick [1971] SASR 73; R v Farrar (1983) 78 FLR 10. 46 Crimes Act 1900 (NSW) s 33A(1)–(2). 47 ‘Intoxicating substance’ is defined in Crimes Act 1900 (NSW) s 4 to include ­alcohol, narcotic drugs and ‘any other substance that affects a person’s senses of ­understanding’. 48 Crimes Act 1900 (NSW) s 49; Crimes Act 1958 (Vic) ss 25–26.

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49 R v Brougham (1986) 43 SASR 187; R v Markou (2012) 221 A Crim R 48; R v Aljaroudi; R v Abdullah; R v El-Awar [2012] SASCFC 117; Batcheldor v R; Walsh v R [2014] NSWCCA 252. 50 Crimes Act 1958 (Vic) s 21A(2); Criminal Law Consolidation Act 1935 (SA) s 19AA(1)(a) (iva)–(ivb) and (b). 51 Defined in s 5 Crimes (Domestic and Personal Violence) Act 2007 (NSW). 52 The Intervention Orders (Prevention of Abuse) Act 2009 (SA) replaced the previous ­Domestic Violence Act 1994 (SA) and substantially altered the scope of restraining orders available under the Summary Procedure Act 1921 (SA). The only orders now available under the latter Act are ‘Paedophile restraining orders’ (s 99AA) and ‘Child protection restraining orders’ (s 99AAC). 53 See also Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(3)–(6). 54 ‘Prohibited behaviour’ is defined in s 5 to mean ‘assault, sexual assault, harassment, property damage or interference, or making a serious threat’. 55 Courts in Victoria are not empowered to make final personal safety intervention orders where there is an existing family violence intervention order, or vice versa: see Family Violence Protection Act 2008 (Vic) s 74A; and Personal Safety Intervention Orders Act 2010 (Vic) s 62. 56 Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 16, 19. 57 Ryan v Stackpool (Unreported, SC (NSW) 25 November 1983). 58 Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 14(4), (6). 59 Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW). 60 Criminal Procedure Act 1986 (NSW) ss 289F, 289I. 61 Criminal Procedure Act 1986 (NSW) s 289D. 62 Criminal Procedure Act 1986 (NSW) s 289G. 63 Criminal Procedure Act 1986 (NSW) ss 76A, 185A, 289H. 64 Criminal Procedure Act 1986 (NSW) ss 289L–289M. 65 Criminal Procedure Act 1986 (NSW) s 289F(5). 66 See ‘Procedural matters in the prosecution and hearing of sexual offences’ in Chapter 6 at pp 143–6. 67 Evidence Act 1929 (SA) s 12AB (awaiting proclamation of commencement of Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA). It will come into effect on 6 August 2017 if no earlier commencement date is proclaimed).

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SEXUAL OFFENCES COVERED IN THIS CHAPTER In this chapter, you will learn about: • the actus reus and mens rea for the core sexual assault offence in each ­jurisdiction • factors in aggravation of the core sexual assault offence • other sexual offences—indecent assault and acts of indecency • significant procedural matters in the prosecution and hearing of cases involving sexual offences.

CASES TO REMEMBER Gillard v R (2014) 308 ALR 190 Banditt v The Queen (2005) 224 CLR 262

STATUTES TO REMEMBER Crimes Act 1958 (Vic) ss 34C–62, 67A–70AC Crimes Act 1900 (NSW) ss 61H–80F Criminal Law Consolidation Act 1935 (SA) ss 5AA, 46–76 Criminal Procedure Act 1986 (NSW) ss 290–306ZP Criminal Procedure Act 2009 (Vic) Chapter 8, Part 8.2, ss 338–389 Jury Directions Act 2015 (Vic) Part 5 ss 45–54 Evidence Act 1929 (SA) ss 13–13D, 34L–34N

INTRODUCTION In Chapter 5 we flagged that there are a number of assault offences that can be described as aggravated assaults because of a sexual or indecency element connected with an assault. In this chapter, we will examine a range of sexual offences, including those that are usually described as sexual assault and rape. The following scenario is based on the facts of a case from the Hunter Valley in New South Wales—R v McKay (Unreported, NSWCCA, Gleeson CJ, Carruthers and Finlay JJ, 10 September 1992). It is a useful illustration of the type of conduct that constitutes sexual assault in the contemporary context.

CHAPTER 6: SEXUAL OFFENCES

IMAGINE THIS SCENARIO Jake, aged nineteen years, and Sarah, aged eighteen years, broke off their long-term romantic relationship six months ago. However, they remained friends. Late one afternoon, Sarah was driving her car home from work. She was flagged down by Jake. Sarah ­decided to give Jake a lift home as it was raining and his house was only a short distance away from their location. As Sarah drove near to the street where Jake lived, Jake told her not to turn into that street but to keep driving straight ahead. Sarah said, ‘No, I’ll drop you off and I am going home’. Jake then pulled out a sharp knife and pressed and prodded it against Sarah’s stomach. Sarah continued to protest to Jake, but he demanded that she continue driving until they reached an isolated area. At this location, Jake took the keys out of the ignition and said, ‘Do exactly what I tell you to do, and don’t try anything!’ By this time, Sarah had become very scared of Jake. Jake then removed his jeans and underpants and commanded Sarah to give him ‘a head job’. Sarah complied and Jake forced his erect penis into Sarah’s mouth and, for about two minutes, directed her to ‘suck it’. Jake removed all of Sarah’s clothing in stages, beginning with her top and then her skirt and underwear. He then pushed her down in the car seat and as he did so Sarah slapped him across the face. Jake responded by punching her hard in the face and pinning her arms back behind the car seat. He then forced his penis into Sarah’s vagina and continued moving his penis in and out of Sarah’s vagina until he ejaculated. Jake then told Sarah to put her clothes back on and to drive him over to the shopping mall in the town centre. Sarah drove Jake to the mall and as he got out of the car, she said, ‘I’m going straight to the police about this’. Jake said, ‘If the cops come to see me, I’ll have my alibi ready’. The incident was then reported to the police after Sarah had been home and complained to her mother about what Jake had done.

Both the acts of oral and vaginal penetration of Sarah by Jake’s penis amount to acts of sexual intercourse. The circumstances of use of force, verbal threats and a weapon provide a very strong basis for the inference that Sarah did not consent to such acts and that Jake knew this. The use of the knife and punching of Sarah by Jake may also be aggravating factors leading to a more serious sexual assault charge.

THE CORE SEXUAL ASSAULT OFFENCE At common law, a rape was committed when a man penetrated a woman’s vagina with his penis in circumstances where the woman did not consent to this act and the man knew that the woman was not consenting, or was aware that she might not be consenting but proceeded with the act anyway. There is clearly an act of this nature in the above scenario. However, when Sarah is forced to place Jake’s penis into her mouth this act of fellatio would not have been a rape in the traditional common law sense.

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In New South Wales, Victoria and South Australia, the common law of rape no longer applies and statutory reform has resulted in a broad range of sexual assault offences. The basic or core sexual assault offence is that of engaging in sexual intercourse with another person without the consent of that other person and with the knowledge that the other person does not consent or being reckless about the absence of consent. This core offence includes any acts that fall within a much more expansive definition of ‘sexual intercourse’ and applies to persons of either sex in relation to acts committed upon persons of either sex. In New South Wales, the core offence is called ‘sexual assault’ and it carries a maximum penalty of fourteen years’ imprisonment.1 In the other two common law jurisdictions, the offence is still called ‘rape’; however, the statutory provisions 2 encompass a much broader definition of sexual intercourse than common law rape. The maximum penalties are much higher in these jurisdictions; twenty-five years’ imprisonment in Victoria and life imprisonment in South Australia.

THE CONDUCT ELEMENTS (ACTUS REUS) OF SEXUAL ASSAULT There are two conduct (actus reus) elements in the core sexual assault offence: an act of sexual intercourse (‘sexual penetration’ in Victoria); and no valid consent by the complainant to the act of sexual intercourse. Sexual intercourse is defined to include penetration to any extent of the genitalia of a female or anus of a person by any body part of another person, or any object manipulated by another person (other than where penetration is required for proper medical or hygienic purposes). Alternatively, introduction of any part of a person’s penis into the mouth of another person (fellatio) or cunnilingus will amount to sexual intercourse.3 Further, the definitions include ‘continuation’ of any of the activities otherwise defined as sexual intercourse.4 A person consents to sexual intercourse if that person freely and voluntarily agrees to that sexual intercourse.5 An integral part of the actus reus is that the act of sexual intercourse was non-consensual from the complainant’s perspective; this is often the central issue in sexual assault cases. In looking for evidence of non-consent, there has traditionally been a focus on the actions of the complainant, and what amounts to consent is largely contextual and may not always be clear. In all common law jurisdictions, circumstances in which consent will be vitiated (not recognised as consent by the law) are listed in the legislation.6 The listed circumstances are intended to be illustrative only, not an exhaustive list. Accordingly, the grounds on which consent may be vitiated are not limited by these legislative provisions.

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The Crimes Act 1958 (Vic) s 34C(2)(a)–(l) will be used to illustrate the nature and extent of these circumstances, which include that: (a) the person submits to the act because of force or the fear of force, whether to that person or someone else; (b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;7 (c) the person submits to the act because the person is unlawfully detained; (d) the person is asleep or unconscious; (e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act; (f) the person is incapable of understanding the sexual nature of the act;8 (g) the person is mistaken about the sexual nature of the act; (h) the person is mistaken about the identity of any other person involved in the act;9 (i) the person mistakenly believes that the act is for medical or hygienic purposes;10 (j) if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes; (k) the person does not say or do anything to indicate consent to the act; (l) having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.

A person who does not offer physical resistance to sexual intercourse is not to be taken, by virtue of that fact, to have consented to that sexual intercourse. 11 Consent may be withdrawn at any time during sexual intercourse and if the act of intercourse continues after the withdrawal of consent, this may be evidence of a sexual assault. 12 There is an enduring national and international debate around issues of consent in this area of the criminal law, particularly in relation to the difficulties that arise in attempting to define consent and clearly identifying the circumstances in which there is a lack of consent by complainants.13

THE MENTAL ELEMENT (MENS REA) OF SEXUAL ASSAULT First, the physical act of sexual intercourse must be an intentional act by the accused. This aspect of the mental element (mens rea) for sexual assault will rarely be in issue.14 The primary aspect of the mental element relates to the accused’s knowledge of a lack of consent to the sexual intercourse by the complainant. In New South Wales and South Australia, this is a subjective mental element and can be established by proof of knowledge or recklessness.15 The position in Victoria was altered by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), relevant aspects of which commenced on 1 July 2015.16 Section 38(1)(c) of the Crimes Act

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1958 (Vic) now requires the prosecution to prove that ‘A [the accused] does not reasonably believe that B [the victim] consents to the penetration’. 17 ‘[W]hether or not a person reasonably believes that another person is consenting to an act depends on the circumstances’ including any steps the person has taken to ascertain consent, but without reference to self-induced intoxication on the part of the accused. 18 The introduction of an objective aspect marks a substantial departure from the position that existed in Victoria before 1 July 2015.19

MISTAKE AS TO CONSENT As the test in relation to knowledge of consent is subjective (at common law), an honest mistake as to consent made by the accused will provide a defence to a sexual assault charge notwithstanding any objective unreasonableness in that mistaken belief. This principle was expounded in DPP v Morgan [1976] AC 182, where, after a drinking session, Morgan invited three of his younger air force colleagues back to his house and suggested they have sexual intercourse with his wife. Morgan told them that she was ‘kinky’ and would pretend to resist, but that she was really enjoying it. All three men had intercourse with Morgan’s wife and were later convicted of rape. On appeal the men argued that they honestly believed that Mrs Morgan actually consented as, although she resisted at first, she later actively cooperated and enjoyed the sexual intercourse. Mrs Morgan’s version was that she did not consent, had screamed, struggled and was held down and forcibly raped by the men. The House of Lords held by a majority of 3:2 that a mistake as to consent, provided it was an honest one, did not have to be reasonable as the mental element for rape is based on a subjective test of the intention of the accused, not on the basis of what a reasonable person would have believed in those circumstances. The principle is amply illustrated in the reasoning of Lord Cross (at 204) in relation to the particular facts of this case: If the appellants when they came to give evidence had said that what Mrs Morgan had said was perfectly true, that she had never at any stage given any sign that she was consenting to—let alone enjoying—the intercourse, but that they were so much influenced by what her husband had told them that they believed throughout her ­manifestations of unwillingness were only play acting, then it is conceivable that a jury, on a proper direction, might have acquitted them. They might … have said to ­themselves that though it was almost incredible that any young men could have been so stupid yet, having seen and heard them, they would give them the benefit of the doubt.

The principle expounded in DPP v Morgan had previously been applied in South Australia20 and Victoria,21 and was followed by the New South Wales Court of Criminal Appeal in R v McEwan (1979) 12 NSWLR 926. In the latter case, Street CJ held that as a matter of law the mistaken belief need not be reasonable as a genuine belief in consent is inconsistent with awareness of absence of consent or a realisation that the victim might not be consenting.

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This common law principle is no longer applicable in New South Wales and Victoria. Section 61HA(3) of the Crimes Act 1900 (NSW) provides that an accused is deemed to have knowledge of lack of consent to sexual intercourse by the other person in the following circumstances: (a) the person knows that the other person does not consent to the sexual ­intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person ­consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person.

The words used in s 61HA(3)(c) lead to the conclusion that any mistake as to consent to sexual intercourse in New South Wales must now be tested by an objective standard. Accordingly, quite apart from the belief as to consent being honestly held by an accused, the grounds for holding that belief must be reasonable as judged by the reasonable person in the position of the accused. In South Australia the principle from DPP v Morgan still applies but is modified by s 47(b) of the Criminal Law Consolidation Act 1935, which states that a person is ‘recklessly indifferent’ to the consent of another person when they realise the possibility that the other person might not be consenting but fail ‘to take reasonable steps to ascertain whether the other person does in fact consent … before deciding to proceed’.22 The relationship between the mens rea of sexual assault and statutory provisions outlining circumstances that vitiate consent to sexual intercourse has been the subject of recent judicial attention in the High Court.

A CASE TO REMEMBER Gillard v R (2014) 308 ALR 190 Mr Gillard was convicted at trial of multiple sexual offences committed against two sisters who had spent time in his care. The prosecution case was put, in part, on the basis that the sisters’ consent to sexual intercourse was negated because it was caused by the appellant’s abuse of a position of trust in relation to the victims. 23 Section 67(3) of the Crimes Act 1900 (ACT) provided that an accused who knew the consent of another

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person had been caused by an abuse of a position of trust was deemed to know that the victim did not consent to sexual activity. The High Court adopted a relatively strict approach to the interpretation of that provision, finding that the use of the word ‘know’ meant that proof of actual knowledge that consent was caused by an abuse of a position of trust was required to activate the deeming provision in s 67(3). Proof of recklessness as to the cause of consent was not sufficient; the accused’s convictions were quashed because this path to conviction had been left open to the jury. As Brown et al. note, 24 the interpretive approach in Gillard might be applied to relevant legislation in other jurisdictions (such as Crimes Act 1900 (NSW) s 61HA(5)) to similar effect.25

RECKLESSNESS If an accused realises a complainant might not be consenting to sexual intercourse, but continues his actions, the accused is reckless.26 In New South Wales, this amounts to knowledge of lack of consent27 and requires proof that the accused realised the possibility that the complainant did not consent but went ahead with the act of sexual intercourse regardless of that realisation. Recklessness also extends to other forms of advertent and non-advertent indifference to the consent of the complainant. This is reflected in the common law in some jurisdictions and in statutory form in South Australia by s 47 of the Criminal Law Consolidation Act 1935, which provides: 47—Reckless indifference For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she— (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.

In R v Kitchener (1993) 29 NSWLR 696, reckless indifference to consent in sexual assault cases was held to encompass situations where an accused failed to consider at all the possibility that the complainant did not consent to the act of sexual intercourse.28 In this case, the trial judge directed the jury that knowledge from recklessness in sexual assault could be proved by the accused foreseeing the possibility that the victim is not consenting but going ahead with the act regardless,

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or failing to even advert at all to the question of whether she was consenting. This direction was challenged on appeal, but the Court of Criminal Appeal held that the direction was correct in law and made it clear that a complete failure to advert to whether or not a person consents to sexual intercourse was within the term ‘reckless’, being ‘consistent with both logic and legal principle’ (per Carruthers J at 703). This is reflected in s 47(c) of the Criminal Law Consolidation Act 1935 (SA), extracted above. A more recent judicial consideration of recklessness as to consent in sexual intercourse was by the High Court of Australia in Banditt v the Queen (2005) 224 CLR 262.

A CASE TO REMEMBER Banditt v The Queen (2005) 224 CLR 262 The accused broke into the complainant’s house at night while she was asleep and began to have sexual intercourse with her. She woke up and realised who it was and told him to stop and leave, which he did. The accused contended that the complainant was awake and consented to sexual intercourse despite the fact she had, on a previous occasion, declined his advances. The trial judge directed the jury that ‘he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead and did it anyway’. The appellant argued that this direction was inadequate and that recklessness cannot be satisfied by an awareness of a risk of non-consent; he had to be ‘indifferent’ about the risk—that is, have a discrete mental state which is, ‘Even if I knew, I would continue. It does not matter to me’. The High Court unanimously dismissed the appeal and held that the trial judge’s direction was clearly adequate as it covered all bases of recklessness fairly and adequately.29

AGGRAVATED FORMS OF SEXUAL ASSAULT In Chapter 5 we saw how assault is a ‘building block’ offence, a foundation for more serious compound offences. The same principle applies to the core sexual assault offence. In New South Wales, the offence of ‘aggravated sexual assault’ is provided for in Crimes Act 1900 (NSW) s 61J. It occurs when sexual intercourse without consent is committed in particular circumstances of aggravation, which are listed exhaustively in s 61J(2) as follows: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or

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(c) (d) (e)

any other person who is present or nearby by means of an offensive weapon or instrument, or the alleged offender is in the company of another person or persons, or the alleged victim is under the age of 16 years, or the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or the alleged victim has a serious physical disability, or

(f) (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

The prosecution has to specify and establish only one of these circumstances for proof of an aggravated offence. Beyond this, an offence of ‘aggravated sexual assault in company’ is provided for in Crimes Act 1900 (NSW) s 61JA and carries a maximum penalty of imprisonment for life. This offence comprises an accused having sexual intercourse with another person without their consent while the accused is in company with another or others and one of the circumstances of aggravation set out in s 61J(2)(a), (b) or (i). The fact of being ‘in company’ provides a serious aggravating feature to this offence and reflects the strong legislative policy against ‘gang rape’.30 The legal test for being ‘in company’ is the coercive effect on the victim of the presence of more than one person—that is, the victim is confronted by the combined strength of two or more persons. The other participants must, at the very least, encourage or assist the offender; however, it is not necessary that they actually engage in the act of sexual intercourse.31 Further, if two or more persons are present and participating in a common purpose, they are in company, even if the victim is unaware of the presence of more than one person.32 This is clearly delineated by Kirby J in R v Button and Griffen (2002) 54 NSWLR 455 at 466: The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to ­embolden or reassure the offender in committing the crime, or to intimidate the victim into ­submission. Here, the context was a remote area, and five persons who shared a common purpose to sexually assault the victim. In that context, applying that test, and assuming for the purposes of argument that the offence is defined by reference to penetration (although I believe that remains an open question), the offence was capable of being regarded as having been committed in the presence of the group.33

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There are a number of sexual offences that are aggravated by virtue of the fact that the act of sexual intercourse is committed upon a child. Increased maximum penalties are provided for these aggravated offences.34 Where the child is under sixteen years of age (in New South Wales and Victoria) or under seventeen years of age (in South Australia),35 there is no question of proving a lack of consent, as the child is not legally capable of giving their consent to an act of sexual intercourse. 36 In Victoria, a defence is available where the alleged victim is actually under sixteen years of age but the defendant believed on reasonable grounds that the person was of or above the age of sixteen years and that person consented to the sexual intercourse.37 A similar defence is provided in s 49(4) of the Criminal Law Consolidation Act 1935 (SA), but only applies where the other person is sixteen years or over but the accused believed they were seventeen years or over. In Table 6.1, the aggravating factors that apply to the core sexual assault or rape offence in each of the common law jurisdictions are detailed. There are differences in the way in which some aggravating factors are described and certain aggravating factors are not provided for in all jurisdictions. In addition, specific sexual offences involving children, including where the child victim is under ten years, are set out in the table.

TABLE 6.1 Aggravating factors applicable to the core sexual assault or rape offence and child sexual offences in the common law jurisdictions AGGRAVATING FACTOR

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)

CRIMINAL LAW ­CONSOLIDATION ACT 1935 (SA)

Inflict actual bodily harm

s 61J(2)(a)

N/A—separate offence s 18

N/A—separate offence s 24

Threaten harm/use or carry offensive weapon

s 61J(2)(b)

s 60A

s 5AA(1)(b)

In company

ss 61J(2)(c), 61JA (1)(b)–(c)

N/A

s 5AA(1)(h)

Victim under age of 16 years

s 61J(2)(d)

s 45(1)

s 5AA(1)(e)(ii) under 12 years; s 49(3)—separate offence where victim under 17 years. (Continued )

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TABLE 6.1 Aggravating factors applicable to the core sexual assault or rape offence and child sexual offences in the common law jurisdictions (Continued ) AGGRAVATING FACTOR

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)

CRIMINAL LAW ­CONSOLIDATION ACT 1935 (SA)

Victim under authority, care, supervision of alleged offender

s 61(J)(2)(e)

s 48

ss 5AA(1)(i), 49(5)–(5a)—separate offence by ‘person in authority’ on victim under 18 years.

Victim has serious physical or intellectual disability (cognitive impairment)

ss 61J(2)(f), 61J(2)(g)

s 51(1) s 52(1)

ss 5AA(1)(j), 49(6)— separate offence where victim ‘by reason of intellectual disability is unable to understand the nature or consequences of sexual intercourse’

Offender breaks and enters dwellinghouse/building with relevant intention

s 61J(2)(h)

N/A

N/A

Offender deprives victim of liberty before or after offence

s 61J(2)(i)

N/A

N/A

Sexual intercourse with a child under 10 years

s 66A

s 45(2) (under 12 years)

s 5AA(1)(e)(ii) (under 12 years), s 49(1) (under 14 years)

Persistent sexual abuse of a child, maintaining a sexual relationship with a young person

s 66EA

s 47A

s 50—separate offence of ‘persistent sexual exploitation of a child’

OTHER SEXUAL OFFENCES INDECENT ASSAULT An indecent assault occurs when a person assaults another person and, at the time of the assault, or immediately before or after it, commits an act of indecency on or

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in the presence of that other person. The person assaulted must not consent to the indecent assault and the conduct typically involves acts of a sexual nature not involving sexual penetration. There are statutory provisions in New South Wales and South Australia proscribing the offence of indecent assault.38 In South Australia, while common assault has become a statutory offence, indecent assault remains a common law offence with few elements stipulated in the statute. In Victoria, this offence is now known as ‘sexual assault’, with elements set out in s 40 of the Crimes Act 1958 (Vic).There is an offence of ‘compelled sexual manipulation’ under the Criminal Law Consolidation Act 1935 (SA) s 48A, which overlaps with some acts that would constitute an ‘indecent assault’, such as compelling an act of sexual manipulation of the offender.39 The elements of the offence are essentially an assault and an act of indecency. There is no requirement that the assault and the act of indecency are to be separate acts by the accused. Any contact or touching that amounts to an indecent act is sufficient to constitute an indecent assault. For example, in Fitzgerald v Kennard (1995) 38 NSWLR 184 at 199, Cole JA stated: To be pedantic, there may be a fraction of time, either before or after a contact assault in which the act of the accused may constitute an act of indecency … In the present case it could be said that the placing of the hand upon the victim’s leg constituted the assault with the moving of the hands towards the bottom constituting the act of indecency. However, looking at the circumstances as a whole, it is accurate to say that the act constituting the assault also constituted the act of indecency.

There is no statutory guidance as to what amounts to an act of indecency in New South Wales and South Australia. The case law does not provide a precise definition; rather, indecency has been explained as involving conduct that is sexual in nature but does not amount to sexual intercourse. There is some sexual connotation derived from where on the victim’s body they are touched by an accused or the part of the accused’s body that is used to do the touching.40 It is subject to prevailing social attitudes and it has been held that ‘an indecent act is one which right-minded persons would consider to be contrary to community standards of decency’, 41—that is, the currently accepted standards of decency in the community where the case is being decided. Another element of the offence of indecent assault is that the act of indecency must be committed without the consent of the complainant. There is a mental element associated with this requirement. In R v Bonora (1994) 35 NSWLR 74, it was held that it is the same as in the offence of sexual assault. The prosecution must prove that the accused either knew the complainant was not consenting or was reckless as to consent. Recklessness can be advertent in the sense that the accused was aware of the possibility of a lack of consent but proceeded anyway, or

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non-advertent in that the accused failed to advert at all to the question of consent. This was recognised by the New South Wales Court of Appeal in Fitzgerald v Kennard (1995) 38 NSWLR 184, where the extended meaning of recklessness expounded in R v Kitchener (1993) 29 NSWLR 696 was applied in the context of an indecent assault. This also applies in South Australia, as the meaning of ‘reckless indifference’ in Criminal Law Consolidation Act 1935 (SA) s 47 extends to all offences in Part 3, Div 11, which includes ‘indecent assault’ in s 56. The elements of the Victorian offence of sexual assault largely reflect the offence of indecent assault as it has developed at common law, and are set out in Crimes Act 1958 (Vic) s 40, which provides: (1) A person (A) commits an offence if— (a) A intentionally touches another person (B); and (b) the touching is sexual; and (c) B does not consent to the touching; and (d) A does not reasonably believe that B consents to the touching.

Section 37E outlines a broad approach to the concept of ‘touching’, and further provides in subs (3) that touching may be sexual due to ‘(a) the area of the body that is touched or used in the touching … (b) the fact that the person doing the touching seeks or gets sexual gratification from the touching; or (c) any other aspect of the touching, including the circumstances in which it is done’. The element of ‘consent’ and the mens rea of this offence are the same as for the offence of rape in Victoria.

AGGRAVATED INDECENT ASSAULT In a similar vein to sexual assault offences, there are a number of circumstances of aggravation relevant to indecent assault offences provided for in the legislation of each common law jurisdiction. These circumstances relate to the age and particular vulnerability of the victim as well as to the accused being ‘in company’. Table 6.2 sets out the aggravating factors for indecent assault offences provided in the various jurisdictions that can result in an increased maximum penalty. TABLE 6.2 Aggravating factors applicable to the indecent assault offence in the common law jurisdictions AGGRAVATING FACTOR

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)42

CRIMINAL LAW CONSOLIDATION ACT 1935 (SA)

Offender in company

s 61M(3)(a)

N/A

s 5AA(1)(h)

Victim under age of 16 years

s 61M(2)

s 47 (indecent act)

s 5AA(1)(e)(ii)—under 12 years; s 56(2)—under 14 years.

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AGGRAVATING FACTOR

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)42

CRIMINAL LAW CONSOLIDATION ACT 1935 (SA)

Victim under authority of alleged offender

s 61M(3)(c)

s 49 (indecent act)

s 5AA(1)(i)

Victim with serious physical disability or cognitive impairment

s 61M(3) (d)–(e)

ss 51(2), 52(2) (indecent act)

s 5AA(1)(j)

ACT OF INDECENCY An offence constituting an ‘act of indecency’ is distinct from an indecent assault. 43 The interpretation of what amounts to an indecent act is the same as for indecent assault discussed above; however, that is the only common element in these offences. In New South Wales, the requirements are that the accused committed an act of indecency with or towards another person either under the age of sixteen years or sixteen years and older.44 There is a separate discrete offence of inciting a person to an act of indecency with or towards another person within these two subsections.45 The prosecution is not required to prove that the complainant did not consent to the act of indecency. In relation to committing an act of indecency towards another person, it has been held that ‘towards’ simply means directing the act at the victim with the intention that they should see the act. The physical proximity of the accused to the complainant is not a determinative factor.46 There is an aggravated form of this offence provided in Crimes Act 1900 (NSW) s 61O with similar circumstances of aggravation in subs (3) as provided in relation to the offence of indecent assault considered above. An offence of ‘committing an indecent act with or in the presence of a 16 or 17 year old child’ is provided in Crimes Act 1958 (Vic) s 49(1). Currently in South Australia, the comparable offence is found in Criminal Law Consolidation Act 1935 s 58(1)(a), which proscribes the commission of any act of ‘gross indecency’ with or in the presence of a person under sixteen years of age. There is also a separate offence in s 58(1)(b) of inciting or procuring acts of gross indecency with or in the presence of the accused or with any other person in the presence of the accused. It is no defence that the act of indecency was committed with the consent of a person under sixteen years. There is no comparable offence to Crimes Act 1900 (NSW) s 61N(2) in relation to persons aged sixteen years and over.

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INCEST Even though sexual intercourse by an adult with a child who is related to them could be prosecuted under the general sexual assault provisions, each jurisdiction retains the offence of incest.47 This offence emphasises the familial nature of the sexual abuse, and that there is a significant breach of trust involved in committing incest. The scope of this offence in relation to the categories of family members and knowledge of the familial link is amply illustrated by Crimes Act 1958 (Vic) s 44, which extends to links by a later marriage or de facto relationship. 44 Incest (1) A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child. Penalty: Level 2 imprisonment (25 years maximum) … (2) A person must not take part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant or the step-child of his or her de-facto spouse … (3) A person who is aged 18 or older must not take part in an act of sexual penetration with a person whom he or she knows to be his or her father or mother or other lineal ancestor or his or her step-father or step-mother … (4) A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her sister, half-sister, brother or half-brother … (5) Consent is not a defence to a charge under this section. … (7) In all proceedings for offences under this section (except under subsection (2)) it shall be presumed in the absence of evidence to the contrary— (a) that the accused knew that he or she was related to the other person in the way alleged; and (b) that people who are reputed to be related to each other in a particular way are in fact related in that way.

In New South Wales and South Australia,48 the offence is restricted to a ‘close family member’, the definition of which extends only to family members from birth and not as a result of a subsequent marriage or relationship.49

CHILD PORNOGRAPHY AND PROSTITUTION OFFENCES A number of offences relating to child pornography and child prostitution have been created by the legislatures in the various common law jurisdictions in the last twenty years. For example, in New South Wales it is an offence to induce a child into or participate with a child in an act of child prostitution, to obtain a material benefit from child prostitution and to use premises for acts of child prostitution. 50

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As to child pornography, the offences created range from using or procuring a child for pornographic purposes to producing, disseminating or possessing child pornography.51 The widespread use of the internet and consequent readily available access to this material in the contemporary context has been a catalyst for the creation of these types of offences.

SEXUAL SERVITUDE In addition to offences involving child prostitution, each common law jurisdiction has specific offences proscribing sexual servitude.52 These offences are directed at commercial operations involving the forcing of people, in a fashion akin to slavery, into providing sexual services. The following definitions taken from Criminal Law Consolidation Act 1935 (SA) s 65A provide a clear illustration of the nature of these offences: ‘commercial sexual services’ means services provided for payment involving the use or display of the body of the person who provides the services for the sexual gratification of another or others; ‘compulsion’—a person compels another (the ‘victim’) if the person controls or influences the victim’s conduct by means that effectively prevent the victim from exercising freedom of choice; … ‘sexual servitude’ means the condition of a person who provides commercial sexual services under compulsion[.]

PROCEDURAL MATTERS IN THE PROSECUTION AND HEARING OF SEXUAL OFFENCES There is an important interaction between the substantive law relating to the sexual offences discussed above and the procedures for the hearing of these types of offences in a court. These procedures, which have been implemented comparatively recently in the common law jurisdictions, are generally designed to make the criminal process less intimidating for the alleged victims of sexual offences. There has been a perceived tension between creating an environment where people will not fear making a complaint about a sexual offence and protecting the rights of an accused to the presumption of innocence and a procedurally fair hearing of a charge. The reluctance of victims to report sexual offences has been linked to a fear that the entire process to which they will be subjected, from the initial complaint to the police through to giving evidence in the criminal trial, will be effectively as distressing as the

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suffering occasioned by the actual offence. Accordingly, legislatures have sought to alleviate that fear by requiring procedures in the criminal justice system designed to minimise the trauma for victims, including the following: limiting the number of times they will have to give evidence in court, protecting their anonymity and dignity, providing facilities for recording of evidence and giving evidence via closed circuit television, and ensuring that contact with the accused is appropriately restricted. 53 At the same time there has been a conscious effort to maintain a balance of fairness between the accused and the alleged victims. Taking New South Wales as an example of the types of procedures that have been implemented, there are a number of provisions contained in Part 5, Div 1 of the Criminal Procedure Act 1986 (NSW) that apply to proceedings for prescribed sexual offences and that are designed to ameliorate the experience of testifying for the complainants. These range from the manner in which the complainant may give their evidence (such as by closed circuit television from a room away from the court room where the hearing is taking place) to restrictions on the admissibility of evidence relating to a complainant’s prior sexual experience, and the directions that a judge can give as to any delay in the making of a complaint. There are similar provisions in Victorian legislation, namely the Criminal Procedure Act 2009 (Vic) and Jury Directions Act 2015 (Vic). Currently in South Australia, the Evidence Act 1929 (SA) contains provisions restricting the admissibility of evidence of an alleged victim’s other sexual activities, warnings to be given by a judge in relation to failure to (or delay by) an alleged victim in making a complaint, and alternative arrangements for vulnerable witnesses giving evidence. Table 6.3 provides a snapshot comparison of the main procedures specifically directed to proceedings for sexual offences in the various common law jurisdictions. TABLE 6.3 Procedures for sexual offence proceedings in the common law jurisdictions SHORT DESCRIPTION OF ­PROCEDURE

CRIMINAL PROCEDURE ACT 1986 (NSW)

CRIMINAL PROCEDURE ACT 2009 (VIC)

EVIDENCE ACT 1929 (SA)

Proceedings must be held in camera when complainant gives evidence

s 291

N/A

N/A

Other parts of the proceedings or entire proceedings heard in camera

s 291A

N/A

N/A

Admissibility of evidence relating to sexual reputation and experience

s 293

ss 339–352

ss 34L(1)–(4)

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SHORT DESCRIPTION OF ­PROCEDURE

CRIMINAL PROCEDURE ACT 1986 (NSW)

CRIMINAL PROCEDURE ACT 2009 (VIC)

EVIDENCE ACT 1929 (SA)

Comment/warning in relation to lack of complaint or delay in complaint

s 294

ss 51(1) (c)–53 Jury Directions Act 2015

s 34M

Comment/warning in relation to complainant’s evidence

s 294AA

ss 51(1) (a)–(b) Jury Directions Act 2015

s 34L(5)–(6)

Alternative arrangements for complainant giving evidence—closed circuit television, use of screens, planned seating arrangements

s 294B

ss 360–364

ss 13–13A (vulnerable witnesses)

Arrangements where accused is unrepresented—court to order or appoint a person to question the complainant

s 294A

ss 356–357 (protected witnesses)

s 13B

Complainant entitled to have support person present when giving evidence

s 294C

s 365

ss 13(2)(e), 13A(2)(e).

Evidence in chief by audio/video recording

s 306U (vulnerable persons only)

ss 379–387

s 13C

Section 293 of the Criminal Procedure Act 1986 (NSW)54 represents an important procedural reform initiative in that it is directed to prohibiting cross-examination of a complainant as to their prior sexual experience unless it can be clearly linked to the events that form the subject matter of the charge before the court. The rationale is to prevent unnecessary and potentially humiliating questioning of alleged victims of sexual assault, but at the same time to ensure that the right of an accused person to a fair trial is not compromised. By subs (2), evidence relating to the sexual reputation of the complainant is inadmissible, and by subs (3) there is a blanket prohibition on the admission of any evidence as to the complainant’s sexual experience, subject to specified exceptions in subs (4). Accordingly, the starting point is that this type

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of evidence cannot be admitted into evidence unless it falls within an exception set out in paragraphs (a) to (f) of subs (4) and ‘its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission’. The main exceptions include (a)(i) where it is evidence of sexual experience or sexual activity taken part in by the complainant at or about the time of the commission of the alleged sexual offence, (a)(ii) where it is alleged to form part of a connected set of circumstances in which the alleged sexual offence was committed, and (b) where it is evidence that relates to an existing or recent relationship between the accused and the complainant. There have been a number of cases in which this provision has been considered and, importantly, it has been recognised that the law was ‘enacted to facilitate the bringing of charges for sexual offences’ and this legislative purpose is central to the interpretation of the various exceptions in practice.55 There are similar provisions in Victoria and South Australia which, although not identical to the detailed New South Wales provision, have the primary objective of ensuring that alleged victims of sexual offences are not asked questions about their sexual activities that would cause unnecessary distress, humiliation or embarrassment.56 There are also special provisions in Part 5, Divs 3 and 4 of the Criminal Procedure Act 1986 (NSW) in relation to retrials and subsequent trials of sexual offence proceedings. These provisions are designed to avoid the complainant having to give the same evidence at more than one trial of the proceedings. For example, if an appeal against conviction by an offender is allowed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence given by the complainant.57 In such circumstances the complainant is not compellable to give any further oral evidence in the proceedings but, if the court gives leave, they may choose to do so.58 These procedures also apply where a new trial of sexual offence proceedings is held because a trial was discontinued for any reason, including the jury being discharged or failing to reach a verdict.59 In South Australia, the courts have a discretionary power to admit evidence taken in earlier criminal proceedings, including that of a ‘vulnerable witness’ under s 13D of the Evidence Act 1929 (SA). In Victoria, a recording of a complainant’s evidence is admissible in the evidence of any new trial of a proceeding if the court considers it is in the interests of justice to admit the recording.60

Important references For more extensive coverage of the substantive law and procedure relating to sexual ­offences, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014) Chapter 7 ‘Sexual Assault’ 316–51. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 11 ‘Sexual Offences’ 609–706.

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David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 8 ‘Sexual Assault’ 657–736. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 7 ‘Sexual Offences’ 241–74. Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and Procedure in New South Wales (4th edn, 2014) Chapter 6 ‘Sexual Offences’ 243–306. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws: Critical Perspectives (2004) Chapter 5 ‘Sexual Assault’ 203–47.

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ASSESSMENT PREPARATION Active learning questions 1 Outline the elements that comprise the crime of ‘sexual intercourse without consent’ or ‘rape’. 2 Describe the circumstances when a complainant is regarded as not having consented to sexual intercourse with reference to relevant legislation in your jurisdiction. 3 What is the meaning of ‘indecent’ or ‘sexual’ in relation to relevant offences in your jurisdiction? 4 How should a judge instruct a jury in relation to their determining whether an act is ‘indecent’ or whether touching is ‘sexual’? 5 Outline the effect of the legislative provision in your jurisdiction dealing with the admissibility of evidence of sexual reputation or sexual experience/activities of a complainant in a trial of a sexual offence.

Problem question Assume the following facts. Rhett Starling and Kasey Lancet recently separated following a relationship lasting approximately two years. Kasey told Rhett that she was ‘involved’ with another man. Rhett was upset by the breakdown in the relationship and became quite angry about Kasey’s infidelity. This led to a confrontation in a café, where Rhett lost his temper and assaulted Kasey’s male companion. Kasey then successfully obtained a restraining order against Rhett prohibiting him from approaching, harassing, assaulting and molesting her, and from going within 500 metres of her place of residence and place of work. Late last Friday evening, Rhett drove to Kasey’s townhouse. He knocked on the door. Kasey opened the door and, upon seeing Rhett, tried to close it again. Rhett, however, placed his foot inside the door and forced it open, saying, ‘This is stupid. Can’t we just talk about it?’ Kasey replied, ‘There is nothing to talk about. I want you to leave!’ Rhett then said, ‘You don’t want me to leave, K, you know I still love you, and you love me’. Kasey let go of the door, walked to the lounge, sat down and started crying. Rhett walked over, sat beside her and put his arm around her shoulder. He then began kissing and caressing her all over. When he moved his right hand to Kasey’s groin, she yelled, ‘Stop!’ and jumped up from the lounge. Kasey then slipped on a floor mat and fell heavily, striking her forehead on the corner of a solid wooden coffee table. In a detailed statement made on Saturday morning to Detective Sergeant Wayland, Kasey stated that the next thing she remembered was waking up on the floor next to the coffee table. She noticed that her skirt was on the lounge and that she was naked from the waist down. She felt dried blood on her forehead and when she moved she felt pain in the area of her vagina. Kasey also stated that after an extensive search of her townhouse she was unable to find the panties she had been wearing that evening. Kasey was then accompanied by a police officer to the local hospital to consult a doctor where swabs were taken from Kasey’s vagina and anus. Later forensic tests confirmed the presence of semen on these swabs. Rhett Starling was arrested on Saturday afternoon and a pair of female panties was found during a search of his apartment. These were later identified by Kasey as the panties she had been wearing when Rhett came to her townhouse on Friday evening. While detained, Rhett refused to answer any questions asked by the investigating police officers

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about his visit to Kasey’s townhouse on Friday evening. Also during his detention, a sample of Rhett’s DNA was taken by way of buccal swab (wiping inside the mouth with an absorbent pad) in accordance with the relevant legislative procedures for taking ­samples from suspects. Later expert comparison by DNA profiling revealed matches between Rhett’s DNA from the buccal swab with the semen found on the swabs taken from Kasey. You are Detective Sergeant Wayland, in charge of this case. Analyse the sexual offence/s with which Rhett Starling could be charged on the basis of all the information received from Kasey Lancet and the other evidence obtained during the investigation. Support your analysis with reference to relevant statutory provisions and case law. For suggested solutions to problem questions, please visit .

Notes 1 Crimes Act 1900 (NSW) s 61I. 2 Crimes Act 1958 (Vic) s 38; Criminal Law Consolidation Act 1935 (SA) s 48. Also, in Crimes Act 1958 (Vic) s 37B there is an important statement of the guiding principles that courts are to have regard to in applying the provisions related to rape and other sexual offences. 3 Crimes Act 1900 (NSW) s 61H; Crimes Act 1958 (Vic) ss 35(1) and 37D (referred to as ‘sexual penetration’); Criminal Law Consolidation Act 1935 (SA) s 5(1). 4 The case of R v Morton (Unreported, ACTSC, Crispin J, 24 February 1998) provides an example of where the initial act of the accused was not a voluntary act on his part but the continuation of the act of sexual intercourse constituted an offence by him. 5 Crimes Act 1900 (NSW) s 61HA(2); Crimes Act 1958 (Vic) s 34C(1); Criminal Law ­Consolidation Act (SA) s 46(2); R v Mueller [2005] NSWCCA 47. 6 Crimes Act 1900 (NSW) s 61HA(4)–(8); Crimes Act 1958 (Vic) s 34C(2); Criminal Law Consolidation Act 1935 (SA) s 46(3). 7 See R v Clark [1998] NSWSC 126. 8 Sadaka v The Queen [2015] VSCA 288. 9 See Papadimitropoulos v The Queen (1957) 98 CLR 249; Dean v Phung [2012] NSWCA 223. 10 See R v Mobilio [1991] 1 VR 339. 11 Crimes Act 1900 (NSW) s 61HA(7); Evidence Act 1929 (SA) s 34N(1)(b); Jury Directions Act 2015 (Vic) s 46(3)(c)(i); R v Wilkes & Briant [1965] VR 475. 12 See, for example, Jury Directions Act 2015 (Vic) s 46(3)(b). 13 For further consideration of, and different perspectives as to ‘consent’ in sexual assault see Jocelynne Scutt, ‘Consent versus Submission: Threats and the Element of Fear in Rape’ (1977) 13 University of Western Australia Law Review 52; Susan Edwards, Female Sexuality and the Law (1987); Victorian Law Reform Commission, Rape—­ Reform of Law and Procedure (Report No 43, 1991); Vicki Waye, ‘Rape and the ­Unconscionable Bargain’ (1991) 16 Criminal Law Journal 94; Simon Bronitt, ‘Rape and Lack of Consent’ (1991) 16 Criminal Law Journal 289; Bernadette McSherry, ‘No! (Means No?)’ (1993) 18 Alternative Law Journal 27; Lani Anne Remick, ‘Read Her Lips: An Argument for a Verbal Consent Standard in Rape’ (1993) 141 University of Pennsylvania Law R ­ eview 1103; Neil Morgan, ‘Oppression, Fraud and Consent in Sexual ­Offences’ (1996) 26 University of Western Australia Law Review 223; Bernadette

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14 15 16

17

18 19 20 21 22 23 24 25

26 27

McSherry, ‘Constructing Lack of Consent’ in Patricia Easteal (ed), Balancing the Scales: Rape Law Reform and Australian Culture (1998); Victor Tadros, ‘No Consent: A Historical Critique of the Actus Reus of Rape’ (1999) 3 Edinburgh Law Review 317; Victorian Law Reform Commission, Sexual Offences: Final Report (2004); Victor Tadros, ‘Rape Without Consent’ (2006) 26 Oxford Journal of Legal Studies 515; Catherine Elliott and Clare de Than, ‘The Case for a Rational Reconstruction of Consent in Criminal Law’ (2007) 70(2) Modern Law Review 225; Australian Law Reform Commission (Report No 114) and New South Wales Law Reform Commission (Report No 128), Family ­Violence—A National Legal Response (2010) Chapter 25; Anna Carline and Claire Gumby, ‘“How an Ordinary Jury makes sense of it is a Mystery”: Barristers’ Perspectives on Rape, Consent and the Sexual ­Offences Act 2003’ (2011) 32 Liverpool Law Review 237; Office of the Children’s Commissioner, ‘“Sex Without Consent, I Suppose That Is Rape”: How Young People in England Understand Sexual Consent’ (2013); Anastasia Powell, Nicola Henry, Asher Flynn and Emma Henderson, ‘Meanings of “Sex” and “Consent”: The Persistence of Rape Myths in Victorian Rape Law’ (2013) 22 Griffith Law Review 456; Vera Bergelson,’The Meaning of Consent’ (2014) 12 Ohio State Journal of Criminal Law 171; and Anna Carline and Patricia Easteal, Shades of Grey: Domestic and Sexual Violence against Women (2014). See R v Evans (1987) 30 A Crim R 262 for a case example where this aspect of the mens rea was in issue. See ‘Recklessness’, pp 134–5. The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) effected substantial changes to the law relating to sexual offences in Victoria. For an outline of some of the difficulties encountered prior to these reforms, see Marilyn McMahon and John Willis, ‘Mandatory Jury Directions in Sexual Assault Trials in Victoria: Less a Model than a Cautionary Tale?’ (2014) 38 Criminal Law Journal 287. Criminal Law Review—Department of Justice and Regulation, Victoria’s New ­Sexual ­Offence Laws: An Introduction (2015) 13–20 provides an extensive and valuable ­analysis of the revised fault element in the new Victorian sexual offences. Crimes Act 1958 (Vic) ss 37G, 37H; Jury Directions Act 2015 (Vic) s 47(3)(b). See Criminal Law Review—Department of Justice and Regulation, above n 17, 18–19; Worsnop v R (2010) 28 VR 187. R v Brown (1975) 10 SASR 139. R v Flannery [1969] VR 31; R v Maes [1975] VR 541. See R v Higgs (2011) 111 SASR 42. Other relevant factors were set out in Crimes Act 1900 (ACT) s 67(1)(a)–(j). David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia ­Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 682. The High Court also addressed similar issues in relation to Victorian legislation in ­Getachew v The Queen (2012) 248 CLR 22. However, the Victorian position may ­require further consideration in light of the reforms implemented by the Crimes ­Amendment (Sexual Offences and Other Matters) Act 2014 (Vic); see, for example, Jury Directions Act 2015 (Vic) s 47(3)(a). R v Hemsley (1988) 36 A Crim R 334; Banditt v The Queen (2005) 224 CLR 262. Crimes Act 1900 (NSW) s 61HA(3)(b).

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28 See also R v Tolmie (1995) 37 NSWLR 660. 29 See particularly at [36] (Gummow, Hayne and Heydon JJ) and [108] (Callinan J). 30 See Kate Warner, ‘Gang Rape in Sydney: Crime, the Media, Politics, Race and ­Sentencing’ (2004) 37(3) Australian and New Zealand Journal of Criminology 344. 31 R v Crozier (Unreported, NSWCCA, Cole JA, Grove and Ireland JJ, 8 March 1996). 32 R v Button and Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159. 33 See also FP v The Queen (2012) 224 A Crim R 82. 34 For example, see Criminal Law Consolidation Act 1935 (SA) s 49(1) where a maximum penalty of life imprisonment is prescribed for the offence of ‘sexual intercourse with a person under 14 years’. 35 Criminal Law Consolidation Act 1935 (SA) s 49(3). 36 See Crimes Act 1900 (NSW) s 77(1). 37 Crimes Act 1958 (Vic) s 45(4). 38 Crimes Act 1900 (NSW) s 61L; Criminal Law Consolidation Act 1935 (SA) s 56. 39 See also Crimes Act 1958 (Vic) s 41. 40 R v Harkin (1989) 38 A Crim R 296; see also Tabet v The Queen [2011] VSCA 124; R v C, M [2014] SASCFC 116. 41 R v Manson (Unreported, NSWCCA, 17 February 1993); Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173. 42 The offences in the Crimes Act 1958 (Vic) addressed in this table (indecent acts) were not amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic). As such, it seems that the common law approach to the concept of an ‘act of indecency’ would be applied when interpreting these offences. 43 See Saraswati v R (1991) 172 CLR 1. 44 Crimes Act 1900 (NSW) s 61N(1) and (2). 45 See, for example, Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173. 46 See R v Barrass [2005] NSWCCA 131, where the offence was committed by the offender exposing and ‘wiggling’ his penis while travelling in a vehicle with the intention that young schoolgirls in a bus could see what he was doing. 47 Crimes Act 1900 (NSW) s 78A; Crimes Act 1958 (Vic) s 44; Criminal Law Consolidation Act 1935 (SA) s 72. 48 Note that the Criminal Law Consolidaition Act 1935 (SA) s 5AA(1)(g) aggravating factor is also relevant and could apply to a wider range of offences than captured by the offence of incest. 49 Crimes Act 1900 (NSW) s 78A(2); Criminal Law Consolidation Act 1935 (SA) s 72(3). 50 Crimes Act 1900 (NSW) ss 91D–91F. See also Crimes Act 1958 (Vic) ss 70AB–70AC (sexual performances involving minors) and Criminal Law Consolidation Act 1935 (SA) s 68 (use of children in commercial sexual services). 51 Crimes Act 1900 (NSW) ss 91G–91H; Crimes Act 1958 (Vic) ss 68–70AA; Criminal Law Consolidation Act 1935 (SA) ss 63–63B. 52 Crimes Act 1958 (Vic) s 60AB–60AE; Criminal Law Consolidation Act 1935 (SA) ss 65A–68; Crimes Act 1900 (NSW) ss 80B–80E. 53 That is not to say that such measures have been uniformly effective; however, such policy discussion is beyond the scope of this book. 54 This section was originally enacted as Crimes Act 1900 (NSW) s 409B.

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55 R v PJE (Unreported, NSWCCA, 9 October 1995); see also R v Burton (2013) 237 A Crim R 238. 56 See Evidence Act 1929 (SA) ss 34L(1)–(4) and Criminal Procedure Act 2009 (Vic) ss 342, 349. 57 Criminal Procedure Act 1986 (NSW) s 306B. 58 Criminal Procedure Act 1986 (NSW) ss 306C–306D. 59 Criminal Procedure Act 1986 (NSW) ss 306I–306K. 60 Criminal Procedure Act 2009 (Vic) ss 379, 381.

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MURDER AND MANSLAUGHTER COVERED IN THIS CHAPTER In this chapter, you will learn about: • the conduct and mental elements of murder • manslaughter by ‘unlawful and dangerous act’ • ‘criminal negligence’ manslaughter • ‘assault causing death’ offences and related developments • causing death and serious injury by motor vehicles.

CASES TO REMEMBER Ryan v The Queen (1967) 121 CLR 205 Royall v The Queen (1991) 172 CLR 378 R v Pagett (1983) 76 Cr App R 279 Wilson v The Queen (1992) 174 CLR 313 Burns v The Queen (2012) 246 CLR 334 R v Lavender (2005) 222 CLR 67 R v Manh Viet Do [2001] NSWCCA 19 R v Taktak (1988) 14 NSWLR 226 King v The Queen (2012) 245 CLR 588

STATUTES TO REMEMBER Crimes Act 1900 (NSW) ss 18–20, 24–25B, 52A Crimes Act 1958 (Vic) ss 3–4A, 318–319 Criminal Law Consolidation Act 1935 (SA) ss 11–14, 19A

INTRODUCTION The crimes we consider in this chapter are often grouped under the generic topics of ‘homicide’ or ‘fatal offences against the person’.1 The most serious form of unlawful homicide is murder, with a maximum punishment of imprisonment for life, which in some jurisdictions such as New South Wales and Victoria means for the term of the convicted murderer’s natural life. In popular fiction, media reporting and television drama, murder has a special status as a criminal offence. Arguably, this is due to the extreme nature of its consequences, the macabre sense of intrigue about killings and fascination for the gruesome details. Despite its high profile in popular

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media and the community and its place in the human psyche, murder is quite rare in Australia. Contrary to popular belief, it is the domestic setting of family and intimate relationships which represents the main source of homicidal violence in modern society, particularly for female and child victims.2 The lesser form of unlawful killing is ‘manslaughter’, which is always available as an alternative verdict to a murder charge at common law3 and is conventionally divided into two categories: voluntary and involuntary. In this chapter, we will focus on involuntary manslaughter, which is broken down again into two main categories: ‘criminal negligence’ and ‘unlawful and dangerous act’ manslaughter. These are common law offences in all jurisdictions. We will also review the recent development of so-called ‘one punch killing’ laws in New South Wales and Victoria. Finally, we will consider the statutory offences that have been created to apply to circumstances where death has been occasioned as a result of the dangerous driving of motor vehicles.

IMAGINE THIS SCENARIO Stewart was growing cannabis plants in a back garden of premises in which he resided in a semi-rural locality. The garden beds had been created near a 2-metre high corrugated iron rear fence which bordered a large expanse of vacant land. Stewart had erected some wire mesh fencing to a vertical height of about 1.6 metres around the plants to protect them from being damaged by animals or stolen by other people. He had made a roof over the plants by horizontal placement of wire mesh from the back fence to star picket supports at the front of the garden beds. There was a gap of approximately 35–40 centimetres between the vertical and horizontal parts of the wire mesh. As Stewart considered that the wire fencing alone was not sufficient protection for his plants, he also electrified the fence using an electric cable. This cable ran for approximately 15 metres, from a garden shed, where the power supply was sourced, to the wire mesh fencing, then between the horizontally and vertically erected parts of this fencing and along the iron capping of the rear corrugated iron fence. The cable was not fully insulated; there were breaks at several places, where the cable was joined. These breaks varied from 5–10 millimetres in size, ­including in the area between the horizontal and vertical parts of the wire fence. Stewart was aware that there were areas of exposed live electric cable, as he had tied the uninsulated pieces together. This fault could have been corrected by purchasing a piece of conduit to cover the exposed breaks in the cable, but Stewart had not done that in the three years that he had been growing the plants, even though the estimated cost was minimal. One night, Wayne entered Stewart’s backyard by stealth, planning to steal the ­cannabis plants. In his attempts to remove the cannabis plants, Wayne was electrocuted and his body was found upright against the wire mesh fence by Stewart the next morning. Wayne had been electrocuted as a result of contact with an exposed part of the wiring in the gap ­between the vertical and horizontal parts of the wire fencing. Stewart wrapped Wayne’s body in an old blanket, placed it in the boot of his car and drove approximately 20 ­kilometres to bushland, where he dumped the body in a marshy area of the bush.

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This scenario is based on the facts of the case of R v Simpson [1999] NSWSC 842 and usefully illustrates the potential application of the spectrum of offences within the homicide category, from intentional or reckless acts causing death and constituting ‘murder’ to unintentional but highly dangerous or negligent conduct resulting in the death of another person comprising ‘manslaughter’. A number of questions arise from the given facts. Could Stewart have committed murder? That is, did he intend to kill or to cause serious injury to Wayne or any person from whom he was protecting his cannabis plants? If not, was he recklessly indifferent towards causing the death of any person, and thus guilty of murder? Alternatively, was Stewart’s culpability of a lesser degree, exposing him to conviction for manslaughter? Was his conduct dangerous or negligent without involving any form of subjective intent? Did the construction of the faulty electrified fencing amount to unlawful and dangerous conduct or was Stewart criminally negligent in relation to his duty of care to others? In the criminal law, murder and manslaughter simultaneously present an interesting overlap and dichotomy. As a result, some latitude is provided in the choice of the appropriate charge to properly reflect the blameworthiness of different conduct which causes death. This overlap and dichotomy will now be explored.

MURDER Murder is a common law offence in Victoria and South Australia,4 whereas in New South Wales the elements of the crime are set out in Crimes Act 1900 (NSW) s 18. At common law the crime of murder is committed when a person, without lawful excuse, causes the death of another person with the intention to kill or to cause grievous bodily harm.5 There is also a category of reckless murder at common law. This category is broader than the statutory reckless murder offence in that death is caused while the accused is reckless as to killing or causing grievous bodily harm. Finally, there is a category of constructive murder (called felony-murder at common law) where the victim is killed during ‘the commission of or in furtherance of the commission of a felony involving violence or danger’ by the accused. 6 There are now statutory forms of constructive murder that have replaced common law felonymurder in Victoria and South Australia.7 The statutory murder offence in New South Wales, which includes constructive murder, is as follows: 18(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or

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some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.     (b) Every other punishable homicide shall be taken to be manslaughter.

THE CONDUCT ELEMENTS (ACTUS REUS) OF ­MURDER The first step in proving a charge of ‘murder’ is to establish that the accused committed the actus reus. The constituent parts of the actus reus for murder in all jurisdictions are: •• the victim must be a human being •• death must have occurred •• the accused must have committed a voluntary act (or omission) •• which caused the death of the victim. Looking at the first two parts of the actus reus, proof that there has been a death 8 of a human being will usually be straightforward and established by evidence from a post-mortem forensic examination of the body. If a body has not been found, death will often be established through a chain of circumstantial evidence.9 There may be a question of when a foetus becomes a human being. At common law a foetus is treated as part of the mother until it is entirely outside the mother’s body and shows signs of a separate existence through the functioning of its own organs.10 In relation to the murder of a child, Crimes Act 1900 (NSW) s 20 provides that a child is deemed to be born alive ‘if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not’. Next, there must be a voluntary act that caused the death of the victim. It is unlikely that an issue as to the voluntariness of an act will often arise. An example of where such an issue did arise is in the seminal case that follows.

A CASE TO REMEMBER Ryan v The Queen (1967) 121 CLR 205 Ryan robbed a service station attendant at gunpoint and, using one hand, started to tie the attendant’s hands together while using his other hand to hold a gun at the attendant’s head. A sudden movement of the attendant allegedly caused Ryan to step back and the gun discharged, killing the attendant. On appeal against his conviction for murder, Ryan argued that his pressing the trigger of the gun was an accident or reflex action and not a voluntary act. Barwick CJ in the High Court emphasised (at 213, 216) that there ‘must be a “willed”, a voluntary act which has caused the death charged. It is the act which must be willed though its consequences may not be intended … an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act’. In Ryan’s case the majority of the High Court judges believed there was a question of voluntariness

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as to the act causing death; however, there was ample evidence upon which the jury could have concluded the accused’s act was voluntary if taken in context. The High Court emphasised the pulling of the trigger could not be separated from its context for the purposes of assessing its voluntariness. Specifically, Barwick CJ outlined the following features of the evidence that established voluntariness (at 218): [T]he safety catch was not applied; the applicant had his finger on the trigger; he was engaged in withdrawing the cord from his pocket, itself an activity limiting the applicant’s freedom of movement and reducing his ­concentration in the handling of the weapon; and, although the deceased had been pliant whilst faced with the gun, he could not be counted on to remain so, p ­ articularly when he knew from the applicant’s own words that he, the ­applicant, was about to do something which in the ordinary course would involve the use of both his hands and so remove or greatly reduce the threat of the gun.11

CAUSATION If there is a voluntary act of an accused, the final actus reus issue that may arise is whether that act caused the death of the deceased. This is often referred to as proving the chain of causation. A question may arise as to whether there has been a break in the chain so that the original acts of an accused can no longer be regarded as a cause of the victim’s death. Causation issues can arise generally in relation to all offences against the person, but there have been some significant homicide cases that deal with this issue. The ‘but for’ test is a broad concept, which in the context of murder would mean that the accused has caused the victim’s death if it would not have occurred but for the fact of the conduct of the accused. The High Court has disapproved of this test as too general for criminal cases. 12 Rather, the concept of legal causation in criminal cases has developed, comprising two elements: (1) the accused’s conduct must be an operating and substantial cause of the victim’s death, and (2) generally, the immediate cause of death must not have been an intervening act or event (novus actus interveniens). In R v Smith [1959] 2 QB 35, Lord Parker CJ made a useful statement of general principle, which has been approved by Australian courts13 and is still used to direct juries where a causation issue arises in homicide cases: If at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound albeit some other cause is also operating … only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.

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Once it is established that the acts of the accused are a contributory and substantial cause of the victim’s death, you must turn your attention to whether there are any intervening acts (novus actus interveniens) by the victim,14 or others, or even natural events15 that break the chain of causation.

A CASE TO REMEMBER Royall v The Queen (1991) 172 CLR 378 In this case, the High Court was dealing with an issue of causation where the victim jumped, fell or was pushed from the bathroom window of a sixth-floor flat after Royall, with whom the victim had previously had a relationship, seriously assaulted her and she had locked herself in the bathroom. Royall said that he forced the door open only to see her jump out of the window; however, there was physical evidence of a violent struggle in the bathroom, and the victim went through the window backwards. The majority endorsed the ‘substantial contribution’ test, but it was emphasised that a more specific direction as to causation was required in the circumstances of this case, given that it potentially involved acts of self-preservation or flight by a victim that might constitute a novus actus interveniens: It seems to me that, in the context of causation, the principle is best ­formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct. [per Mason CJ at 389]

This test is a refinement that applies only in cases where the victim’s death is caused by their own efforts at flight or self-preservation, or, as in Royall, where there is reasonable doubt that it may have been caused in this way. In R v Dawood [2002] SASC 346, the accused was charged with causing the death of his passenger by dangerous driving. The defence case was that the passenger had pulled on the handbrake, and that it was this, and not the accused’s driving, that caused the accident and the passenger’s death. The trial judge had used a direction to the jury consistent with Hallett, suggesting that any intervening cause must be so substantial that it overwhelms the accused’s conduct as a cause of death. The court found that this was insufficient, and that since the defence case was that the passenger had caused her own death, a Royall direction was required to guide the jury. A retrial was ordered. If in a given case there is a reasonable possibility that the conduct of a victim was a direct cause of death then a jury will need further assistance in determining the issue of causation. A jury should be told that if they conclude that there is a reasonable

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possibility that a victim overreacted in a way that was disproportionate to the danger or that a victim’s conduct was not a natural consequence of the danger or that a victim’s conduct arose from a fear that was not well grounded and not reasonable then an accused is entitled to be acquitted. A jury should understand that if it reaches any of the above conclusions then a victim’s conduct amounts to an intervening cause and an acquittal should follow. [per Gray J at [79]]

A CASE TO REMEMBER R v Pagett (1983) 76 Cr App 279 This case is instructive in dealing with the question of whether an intervening act by another person (third party) breaks the chain of causation leading to a victim’s death. The unusual factual circumstances involved Pagett using the victim as a human shield when he shot at armed police who were attempting to arrest him. The police then shot back at Pagett and in doing so the victim was shot and killed. On appeal against his conviction for manslaughter, Pagett argued that it was the intervention of a third party (the police shooter) which directly caused the victim’s death, so that the chain of causation between his action and the victim’s death was broken by the conduct of the police in firing at him. The Court of Appeal rejected this argument and held that the police action was not a novus actus interveniens but rather a reasonable act of self-defence on the part of the police officer against the act of the accused. Overall, it was held that the causal link remained as the accused committed two dangerous acts: holding the victim by force as a shield to protect himself from any shots fired by the police and then actually firing shots himself at the police with the awareness that shots might be fired back in his direction. The court emphasised (at 288) that a novus actus interveniens will only break the chain of causation where the intervening act is ‘so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused’.

Also, in considering potential intervening acts breaking the chain of causation there is what has been traditionally referred to as the ‘egg-shell skull’ rule of causation. This applies where the victim dies from injuries sustained from the acts of the accused but which may not have resulted in death if the victim had accepted medical treatment or had not had a pre-existing condition.16 This is well illustrated by the case of R v Blaue [1975] 3 All ER 446, 450, where the victim of a stabbing refused to have a blood transfusion on the basis of her religious beliefs and subsequently died: It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is

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the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.

Consistent with this principle, it has also been held that as long as the original injuries inflicted by an accused are ‘continuing, operating and substantial causes of the victim’s death’ then the intervention or discontinuance of medical treatment (such as disconnecting life support machines) does not break the chain of causation. 17 Only in the most extraordinary circumstances will negligent medical treatment be held to break the chain of causation.18

THE MENTAL ELEMENTS (MENS REA) OF MURDER Once the actus reus has been established, the next step is to prove that the accused had the mens rea for murder at the time of committing the actus reus. The various heads of mens rea for murder in all jurisdictions are: (1) an intention to kill (2) an intention to cause grievous bodily harm (3) reckless indifference to human life or to grievous bodily harm.19 An intention to kill is proved where the accused acts with the purpose of achieving a particular object—that is, the death of another person. It is a subjective test of the particular accused’s intention. There is no comprehensive definition of ‘intention’ at common law as the courts have generally taken the view that it is unnecessary for a trial judge to elaborate upon its meaning. As we are dealing with the accused’s actual state of mind, proof of an intention to kill will often be provided by the acts and words of the accused in the particular circumstances unless there is an admission made by the accused that they actually intended to kill the victim. This mental state is generally regarded by the courts as the most culpable in murder. Simpson J observed in the case of Apps v R [2006] NSWCCA 290 at [49]: ‘I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser’. An intention to inflict grievous bodily harm can be proved where the accused acts with the purpose of causing really serious harm to another person. 20 This is also a subjective test and only differs from the first mental state in relation to what the accused must intend to do to their victim. In R v Rhodes (1984) 14 A Crim R 124 the accused suffocated the victim by holding a pillow over her face. The accused asserted that he did not intend to kill or cause grievous bodily harm but rather to render the victim unconscious to stop her hysterical screaming. The Supreme Court of Victoria held that it was open to the jury to find that the accused ‘intended, by cutting off … [the victim’s] air supply, if not to kill her, then at all events to render her insensible … smother the girl into unconsciousness’ and thus cause her grievous bodily harm within the accepted meaning of those words (at 126).

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Reckless murder at common law involves linking the act causing death with knowledge in the accused that it is probable that death or grievous bodily harm will result from that conduct. In La Fontaine v The Queen (1976) 136 CLR 62, Gibbs J stated (at 77): It is enough to tell them [the jury] that it is only if the accused actually knows that his act will probably cause death or grievous bodily harm that he can be convicted of murder. The extreme gravity of the offence lies in the fact that he fully realised the probable ­consequences of his act and was prepared to take the chance that they would ensue. If he did not in fact foresee that death or grievous bodily harm would probably be caused by his act, he would not be guilty of murder even though a reasonable man would have foreseen such a result was probable; in those circumstances he might, however, be guilty of manslaughter.

Later in the case of R v Crabbe (1985) 156 CLR 464, where a truck driver drove his road train through the bar of a motel at Ayers Rock, killing five people, the High Court emphasised that (at 467–8) ‘the mental state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will probably cause death or grievous bodily harm’. It was regarded as ‘settled law’ that ‘it is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result’, so the word ‘probable’ can be equated with ‘likely to happen’ (at 470).21 In New South Wales, the Crimes Act 1900 (NSW) s 18(1)(a) proscribes reckless indifference to human life; therefore, unlike under the common law, it is not sufficient if only grievous bodily harm is foreseen by the accused as a probable consequence of his or her conduct.22 Recklessness, therefore, involves a combination of foresight that the accused’s actions will probably cause death and the unjustifiable decision to take that risk. Overall, the question to be asked in relation to whether an accused was recklessly indifferent to human life is: ‘Did the accused, without lawful justification or excuse, do an act knowing or being aware that it was probable that death would result and not caring whether such consequences would result or even wishing they would not result?’ Figure 7.1 demonstrates a spectrum of the degree of mental awareness or knowledge that can be equated with the mental states for murder, lesser crimes of manslaughter, and causing death without any mental awareness. Murder is committed when mental awareness or knowledge amounts to a subjective realisation of the probability of death, whereas manslaughter involves a lesser level of awareness and is judged by an objective standard. Strict liability offences, such as dangerous driving causing death or assault causing death, do not require any mental awareness of even the slight possibility of death or serious injury.

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FIGURE 7.1 The line of awareness Strict liability Manslaughter (objective) Not aware

Aware slightly possible

Aware possible

Murder (subjective)

Aware probable

Aware certain

Intended

CONSTRUCTIVE MURDER This final category of murder does not require the accused to possess an intention to kill or to cause grievous bodily harm, or advertent recklessness. In New South Wales, it arises where the accused causes the death of the victim during the commission of a prescribed serious offence. This must be an offence punishable by imprisonment for twenty-five years or life, such as ‘aggravated sexual assault in company’ (Crimes Act 1900 (NSW) s 61JA), ‘aggravated robbery with wounding’ (Crimes Act 1900 (NSW) s 96), or ‘armed robbery with wounding’ (Crimes Act 1900 (NSW) s 98). This offence is often described as the ‘foundation crime’ in that it is the crime that was originally planned to be committed by the accused, but a killing occurred as an incident to carrying out that crime.23 It is clear from cases such as Mraz v The Queen (1955) 93 CLR 493 and R v Munro (1981) 4 A Crim R 67 that it is sufficient for this type of murder that the accused acts voluntarily with the mens rea required for the foundation crime. The act causing death must be done during or immediately after the commission of the proscribed foundation crime. The words ‘immediately after’ are not restricted to any event occurring within seconds or minutes of the termination of actions that constitute the proscribed crime; it will depend on all the circumstances of the case.24 The common law felony-murder rule has been abrogated in Victoria25 and has been replaced with a statutory offence of unintentional killing in the course or furtherance of a crime of violence under Crimes Act 1958 (Vic) s 3A(1). The crime must include an element of violence and must be such as would make the offender liable to level 1 imprisonment (life) or to imprisonment for ten years or more. In South Australia, there is a similar statutory offence in Criminal Law Consolidation Act 1935 (SA) s 12A, which provides that a person is guilty of murder if they cause the death of another person as a result of committing ‘an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more’.26 This lower maximum penalty of ten years in Victoria and South Australia means that the commission of a broader range of foundational crimes that cause the death of another person can result in a charge of murder.

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MANSLAUGHTER Involuntary manslaughter shares the same actus reus as murder (discussed above), but is committed without the mens rea for murder. Voluntary manslaughter is where the accused does possess the mental state for murder but liability is reduced to manslaughter because of a mitigating circumstance, such as provocation or excessive use of force in self-defence. Voluntary manslaughter is more fully considered in Chapter 11. The categories of involuntary manslaughter, namely unlawful and dangerous act and criminal negligence, encompass unlawful homicides where the accused possesses a lesser form of mens rea or no mens rea (in relation to causing death) at all. In all jurisdictions, manslaughter is defined by reference to the common law.

MANSLAUGHTER BY AN UNLAWFUL AND DANGEROUS ACT Manslaughter by an unlawful and dangerous act is also referred to as constructive manslaughter and requires proof that the accused: (1) committed an unlawful act (2) which caused the victim’s death, and (3) that act was objectively dangerous.27 Interwoven in these elements are that the accused’s act was voluntary and that they had the mens rea for the unlawful act that was committed. The crucial case is Wilson v The Queen (1992) 174 CLR 313, originating from South Australia.

A CASE TO REMEMBER Wilson v The Queen (1992) 174 CLR 313 Wilson and his girlfriend were walking to a hotel near the home of Wilson’s mother to collect some alcohol. On the way they met Ormsby (hereafter referred to as ‘the deceased’), a middle-aged man who was under the influence of alcohol. There was a short verbal exchange between Wilson and the deceased. Wilson thought the deceased was ‘strange, a bit weird’ and was making it hard for him to pass through to his intended destination. Wilson then sent his girlfriend back to the house to get a friend, Cumming, allegedly so that Cumming could get the alcohol. Wilson claimed that the deceased pushed him and that, after Cumming arrived, the deceased ‘put his arm on the back of my neck and tried to kiss me’ and then ‘shouldered me’. Wilson said he tried to walk away, but saw that the deceased’s fists were clenched at his side and thought the deceased was going to hit him. Wilson then hit the deceased in the face, causing him to fall to the ground and hit his head on the pavement. Wilson then walked off with his girlfriend. Cumming rolled the deceased on to his stomach, went through his pockets and ‘smashed’ his head twice on the concrete path. The deceased died from brain damage. The prosecution case suggested that the most likely cause of death was the fall caused by Wilson’s punch.

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Wilson was convicted of manslaughter. On appeal to the High Court, a majority of the judges, after extensive consideration of the relevant authorities, 28 laid down a clear principle governing manslaughter by an unlawful and dangerous act. According to Mason CJ, Toohey, Gaudron and McHugh JJ (at 332), the act causing death must be itself unlawful (noting that an unjustified punch, being an assault, would be an unlawful act) and must, on an objective view, create an ‘appreciable risk of serious injury’ 29 to clearly distinguish it from murder.

First, as to what constitutes an ‘unlawful act’ for the purposes of this category of involuntary manslaughter, it is clear that the act must amount to a breach of the criminal law. In many cases, the unlawful act is one of the various forms of assault previously addressed in Chapter 5. Numerous other offences, including attempted assault, attempted robbery, burglary or break and enter type offences, arson and discharging a firearm in a public place, have also been found to be ‘unlawful’ for the purposes of this category of manslaughter.30 There are also cases which demonstrate that administration of prohibited drugs can constitute an unlawful act in relation to a charge of manslaughter.31 The High Court recently considered the relationship between drug offences and manslaughter in the case of Burns v The Queen (2012) 246 CLR 334.

A CASE TO REMEMBER Burns v The Queen (2012) 246 CLR 334 Ms Natalie Burns and her husband32 provided methadone to the victim, who experienced an adverse reaction to the drug and later died. The victim had consumed the methadone in the home of the accused, and left that venue unassisted before being found dead the following day near to the home of the accused. Toxicology reports indicated that the victim’s death resulted from the combination of methadone with other medication the victim was taking. Ms Burns was convicted of manslaughter at trial; her conviction was upheld on appeal to the New South Wales Court of Criminal Appeal. Ms Burns subsequently appealed to the High Court, where her conviction was quashed and a verdict of acquittal was entered. By the time the matter reached the High Court, three possible bases for a manslaughter conviction had been identified. The first basis was that Ms Burns had carried out an unlawful and dangerous act by supplying the methadone to the deceased. The Crown conceded, and the High Court agreed, that supplying prohibited drugs was an unlawful, but not necessarily a dangerous act; ‘[a]ny danger lies in ingesting what is supplied’ (at 361, 364). Further, the act of supplying the drug was not itself a cause of the victim’s death; the voluntary and informed act of the deceased in consuming the methadone was regarded as the legal cause of his death (at 352–3; 361–4; compare Heydon J at 371). The second basis was that Ms Burns had either administered the methadone to the victim or had helped the victim to inject himself with the methadone. The majority of the High Court agreed that the administration of prohibited drugs might

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support a manslaughter conviction, but found that the prosecution could not prove beyond reasonable doubt that Ms Burns had administered the drugs or assisted the deceased in ingesting the drugs (at 353; 365–6; compare Heydon J, dissenting on this point, at 372–6). Finally, the third basis was that Ms Burns was grossly negligent in failing to secure medical treatment for the victim when he experienced an adverse reaction to consumption of the methadone. The High Court found that Ms Burns did not owe the victim a duty of care that required her to secure medical assistance for him in this instance (at 353–5; 366–70; 376–7).33 This case highlights the need for care and precision when identifying an unlawful and dangerous act for the purpose of an involuntary manslaughter charge. This case also usefully illustrates how a manslaughter charge can be pursued on multiple bases in relevant factual scenarios.

An act that involves a breach of motor traffic regulations will not by reason of that fact alone be an unlawful act for the purposes of manslaughter. 34 However, some breaches of motor traffic regulations may constitute an unlawful act, such as driving under the influence of alcohol or at a dangerous speed.35 Also, where a motor vehicle is in effect used as a weapon and that use is likely to lead to physical harm to another, there is clear scope for it to be categorised as an unlawful act for the purposes of constructive manslaughter.36 Generally, the breach will have to be of such a nature as to involve a real danger or risk of physical harm to other persons on or in the vicinity of a road. Second, the unlawful act must cause the victim’s death. Causation issues may arise in manslaughter cases in the same way as they do in the murder cases that have been discussed above, and the same legal principles apply. Third, the unlawful act that causes the victim’s death must be dangerous in the sense that it creates ‘an appreciable risk of serious injury’. It is clear that the test of dangerousness is objective and is applied in light of the circumstances, the nature of the accused’s conduct and what was actually known to the accused.37 Further, the age of an accused who is a child (i.e. under the age of 18 years) 38 and the ‘extremely poor information processing speed and impaired conceptual reasoning abilities’ of an accused ‘possessed of a moderate intellectual disability’ have also been found to be ‘objectively ascertainable attributes’ that should be taken into account when applying the objective test of dangerousness in this form of manslaughter.39 Beyond those characteristics, the subjective idiosyncrasies of the accused, including their physical or emotional condition, are not taken into consideration when applying this test. The question is whether, in the circumstances and on the facts as they were known to the accused, a sober and reasonable person (of the age of the accused and/or experiencing an intellectual disability, in appropriate cases) would have realised that the unlawful conduct created ‘an appreciable risk of serious injury’.

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‘Serious injury’ refers to physical injury and not emotional disturbance. 40 Further, it is clear that where the unlawful act is an assault, for it to be objectively dangerous it must involve the application of physical force to the body of the victim and not be a ‘technical assault’ amounting only to the threat of force.41

CRIMINAL NEGLIGENCE MANSLAUGHTER This category of involuntary manslaughter requires proof that: (1) the accused had a duty of care to the victim (2) there was a breach of that duty of care by a voluntary act or omission of the accused (3) the breach of the duty of care caused the death of the victim (4) the breach of the standard imposed by the duty of care was of such a degree that there was a high risk of death or grievous bodily harm to the victim and it merited criminal punishment.42 The leading statement regarding manslaughter by criminal negligence in Australia is that of the Full Court of Victoria in Nydam v R [1977] VR 430 at 445. It is an objective test focusing on establishing that the accused’s conduct demonstrated such a high degree of carelessness and disregard toward the life of others that it amounted to a crime: In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm, but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.

The following is a comparatively recent and important case example confirming the enduring authority of Nydam.

A CASE TO REMEMBER R v Lavender (2005) 222 CLR 67 Lavender was driving a front-end loader that ran over and killed a thirteen-year-old boy at a sand mine near Newcastle. Lavender was convicted of manslaughter after a trial in the District Court. Lavender appealed against his conviction and the appeal was allowed by a majority of the Court of Criminal Appeal on the basis that the interaction between ss 18(1)(b), 18(2)(a) and 5 of the Crimes Act 1900 (NSW) required judicial directions to be given to the jury about the definition of ‘maliciously’. This decision effectively added a subjective element from s 18 of the Crimes Act 1900 (NSW) to the objective test for criminal negligence manslaughter established by Nydam, as the court held that the jury had to also be satisfied that the conduct of the accused was done with (1) indifference to human life or suffering or (2) wantonly or (3) recklessly. On appeal by the prosecution to

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the High Court, it was held that the Court of Criminal Appeal was in error in relation to the true construction of s 18. In unanimously allowing the appeal, the High Court emphasised that the elements of involuntary manslaughter are prescribed by the common law and it is settled law that manslaughter by criminal negligence is defined solely by reference to the common law as an objective test of the accused’s actions or omissions in accordance with the statement of principle from Nydam. This decision restored the settled law and confirmed that ‘malice’ is not an ingredient of manslaughter. Also, the High Court endorsed the use of the adjective ‘wicked’ to describe the very high degree of negligence required in the Nydam test.

For criminal negligence manslaughter, a duty of care must be owed by the accused to the victim. Where the alleged homicide involves an act of the accused, the duty of care is established on the basis that the accused is under a general tortious duty not to cause harm to another person. If the charge is predicated on an omission to act by the accused, then there must be a recognised legal duty to act to avoid causing death or injury to the victim. The legal duty may be imposed through a relationship such as parent and child or otherwise where responsibility for the care of a person is voluntarily assumed.43 The standard of care is what would have been exercised by the hypothetical reasonable person in the same situation. The test involves placing the reasonable person with what was actually known by the accused in the same circumstances. The reasonable person is a person of ‘ordinary fortitude and strength of mind’ who is of approximately the same age and experience (including education and training) as the accused. However, the reasonable person does not otherwise take on any of the accused’s individual characteristics. 44 The breach of the duty of care by the accused must then be of such a high degree as to amount to ‘gross’ or ‘wicked’ negligence. A useful example of a case of criminal negligence manslaughter where the breach of duty of care reached that very high degree of negligence follows.

A CASE TO REMEMBER R v Manh Viet Do [2001] NSWCCA 19 In this case, Do fatally wounded the victim (Chau Thai Le) when Do discharged a cartridge from a pump action shotgun into the victim’s chest. Do asserted that they had been ‘mucking around’ with the gun and that, after moving it on and off, he believed he had the safety slide engaged when he pointed the gun and pulled the trigger. In dismissing Do’s appeal against his conviction for manslaughter, the Court of Criminal Appeal held that it was clearly open to the jury to be satisfied beyond reasonable doubt that Do’s act constituted criminal negligence: The appellant was clearly enough aware of the danger of pointing a loaded weapon at someone … He loaded the shotgun and moved the safety on

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and off as he tried to scare Mr Le. He squeezed the trigger several times. This was not a case in which a loaded firearm was pointed at someone with the catch on safety, but a case in which there was movement of the safety on and off with the inevitable possibility in the circumstances as described in the evidence that it would not be properly moved to a position in which the shotgun would not be discharged. If the appellant did not take proper care to ensure that the shotgun did not discharge the risk to Mr Le was extreme; if the shotgun did discharge Mr Le would almost certainly be killed. The need for care was o ­ bvious to a person in the appellant’s position, and could hardly have been higher because it would have been plain to any reasonable person in his p ­ osition that at some point in the operation of the safety slide or switch it would pass from safety to unsafety and that if the safety slide or switch were to be moved on and off in conjunction with pulling the trigger the utmost ­attention was necessary to ensuring that the safety was properly engaged when the trigger was pulled. That the jury should have concluded with ­satisfaction to the criminal standard that the appellant had failed to take that care was … quite ­unremarkable. (Giles JA at [22]; James and Hulme JJ agreeing)

Hulme J (at [25]–[26]) noted that the actions were ‘performed by someone who [had] spent the night participating in alcohol, smoking heroin and eating Rohypnol tablets, all of which activities are calculated not to improve the fine senses’ and clearly demonstrate that the accused’s acts fell so far short of the standard of care required in those circumstances that they amounted to ‘wicked’ negligence meriting criminal punishment.

In relation to omissions to act, the case of Stone and Dobinson [1977] 1 QB 354 is a useful illustration of inaction on the part of the two accused that amounted to gross negligence.45 In this case the two accused had assumed a duty to care for Stone’s eccentric sister (F), who was a lodger in their premises. Although the two accused made some efforts to care by providing food, F’s condition deteriorated rapidly when she was not fed and cared for properly and help was not sought when F clearly required hospitalisation. In contrast, R v Taktak (1988) 14 NSWLR 226 illustrates that a legal duty of care is more than a mere moral obligation. Even though a duty of care could be established in this case, the accused’s inaction in relation to the deceased did not reach the very high degree of negligence required for criminal negligence manslaughter.

A CASE TO REMEMBER R v Taktak (1988) 14 NSWLR 226 Taktak had assumed some responsibility for the care of a sex worker whom he had earlier procured to attend an associate’s party and later picked up when contacted by his associate. He found her unconscious in the lobby of the party venue and took her back to his associate’s house. In doing this he ‘removed her from a situation in which others might have rendered or obtained aid for her’ and thus he assumed a duty of care for her, as she

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was incapable of obtaining help for herself (at 248). The sex worker had overdosed on heroin. Although Taktak realised the sex worker’s condition showed she had been using a drug of some kind, there was no evidence that Taktak knew the extent of her drug use or that if medical assistance were not immediately obtained for her she would be likely to die. In allowing Taktak’s appeal and quashing his conviction for manslaughter, Yeldham J emphasised a number of unsatisfactory aspects of the evidence, including the likely time of death and uncertainty regarding the length of time between Taktak picking up the sex worker from the party and her subsequent death. In those circumstances, Taktak may have been negligent in failing to seek medical treatment for the deceased, but it did not amount to the very high degree of negligence required to amount to manslaughter by criminal negligence.

Finally, the case upon which the example scenario that appears on pp 154–5 was based, R v Simpson [1999] NSWSC 842, was prosecuted as a case of manslaughter by criminal negligence. Studdert J described this case as ‘a very serious case of criminal negligence’ (at [20]) and identified the wiring system the accused had created to protect his cannabis crop, together with the failure to insulate the wiring over a three-year period when the cost to do so was minimal, as grossly negligent conduct. The accused was sentenced to nine years’ imprisonment with a minimum term of six years. In South Australia, the statutory offence of ‘criminal neglect’, a species of criminal negligence manslaughter, was created in 2005 as s 14 of the Criminal Law Consolidation Act 1935 (SA): 14  Criminal liability for neglect where death or serious harm results from unlawful act (1) A person (the ‘defendant’) is guilty of the offence of criminal neglect if— (a) a child or a vulnerable adult (the ‘victim’) dies or suffers serious harm as a result of an unlawful act; and (b) the defendant had, at the time of the act, a duty of care to the victim; and (c) the defendant was, or ought to have been aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act; and (d) the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant’s failure to do so was, in the circumstances, so serious that a criminal penalty is warranted. … (3) For the purposes of this section, the defendant has a duty of care to the victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim’s care. (4) In this section—

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act includes— (a) an omission; and (b) a course of conduct … unlawful—an act is unlawful if it— (a) constitutes an offence; or (b) would constitute an offence if committed by an adult of full legal capacity …

‘ASSAULT CAUSING DEATH’ OFFENCES AND RELATED DEVELOPMENTS In 2014 two offences of ‘assault causing death’ were added to the suite of homicide offences in New South Wales; these offences are commonly referred to as ‘one punch’ laws. The offences were enacted ‘following [two high profile ‘one punch’ killings and] an intense media campaign around alcohol-fuelled violence generally and one-punch violence in particular’.46 The offences are set out in s 25A of the Crimes Act 1900 (NSW); subs (1) provides the core offence of assault causing death, which requires proof (a) the accused assaulted the victim by intentionally hitting the victim with any part of the accused’s body or with an object held by the accused, (b) the assault was not authorised or excused by law, and (c) the assault caused the death of the victim. Subsection (2) provides an aggravated offence, requiring proof of an additional element that the accused was intoxicated.47 Controversially, the aggravated offence in Crimes Act 1900 (NSW) s 25A(2) is subject to a mandatory minimum penalty of eight years’ imprisonment.48 The prosecution is not required to prove that death was reasonably foreseeable, and the assault is regarded as causing a death that results from injuries received from hitting the ground or an object as a consequence of the assault.49 Both the creation and the content of these offences have been the subject of substantial criticism and ongoing debate. 50 In Victoria, a similar outcome has been achieved through statutory modification of the offence of manslaughter. Section 4A(2) of the Crimes Act 1958 (Vic) provides that a ‘single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act’. The application of the section is limited to a single punch or strike delivered to ‘(a) any part of a person’s head or neck; and (b) [that] itself causes an injury to the head or neck’.51 As in New South Wales, the provision applies to injuries beyond those which are the immediate result of the strike or punch to the head or neck.52 Section 9C of the Sentencing Act 1991 (Vic) outlines circumstances in which a mandatory minimum penalty of ten years’ imprisonment is to be imposed on an offender who is convicted of manslaughter by unlawful and dangerous act within the scope of Crimes Act 1958 (Vic) s 4A(2). At present, no new offences or statutory modifications of this nature have been implemented in South Australia. The common law framework for manslaughter by

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unlawful and dangerous act outlined above continues to apply to relevant similar scenarios in that jurisdiction.

DEATH AND SERIOUS INJURY CAUSED BY MOTOR VEHICLES The cases of R v Pullman (1991) 58 A Crim R 222 and R v Cramp (1999) 110 A Crim R 198, referred to briefly above, illustrate the potential for charging both types of involuntary manslaughter when death is caused as a result of a motor vehicle collision. ‘Where death is caused by motor accidents, juries have traditionally been reluctant to convict the offender of involuntary manslaughter’,53 so it is more common in the contemporary context for the statutory offences of dangerous or culpable driving to be charged in such circumstances. Depending on the jurisdiction, these offences range from being virtually the same as reckless murder and negligent manslaughter to encompassing a strict liability standard such that the prosecution does not have to prove a mental element. The offences in each jurisdiction will now be separately considered. First, in Victoria the offence of ‘culpable driving causing death’ under s 318 Crimes Act 1958: 318(1)  Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence … (2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle— (a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or (b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or (c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or (d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle. Without limiting subsection (2)(b), negligence within the meaning of that sub(2A)  section may be established by proving that— (a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and (b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.

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… (4) A person who is convicted or acquitted of an indictable offence under this ­section shall not in respect of the death concerned subsequently be ­prosecuted for unlawful homicide or under this section.

In relation to this offence, it has been observed that ‘with the exception of s 318(2)(a) … which allows for conviction under circumstances that would justify a conviction for reckless murder at common law … [this provision] allows for conviction under circumstances that would justify a conviction for negligent manslaughter’. 54 The offence akin to negligent manslaughter includes by subs (2A) that the accused was driving while fatigued and knew or ought to have known that there was a risk of falling asleep or losing control of the vehicle. ‘Dangerous driving causing death or serious injury’ offences55 were created by the Crimes (Dangerous Driving) Act 2004 (Vic) and these are strict liability offences where the prosecution has only to prove that the accused was driving a motor vehicle ‘at a speed or in a manner that is dangerous to the public’ and by doing so caused the death of, or serious injury to, another person. These latter Victorian offences are similar to the strict liability ‘dangerous driving’ offences provided in s 52A of the Crimes Act 1900 (NSW). Essentially, this section creates two offences together with aggravated forms of those offences: ‘dangerous driving occasioning death’56 and ‘dangerous driving occasioning grievous bodily harm’.57 There is no mental element in these offences. However, the accused can put forward evidence of a defence of honest and reasonable mistake as to fact, which, once sufficiently raised by the accused, must be negatived by the prosecution. 58 The act of driving must also be conscious and voluntary.59 The elements of these offences which must be proved beyond reasonable doubt are: (1) that the accused was the driver of the motor vehicle at the relevant time; (2) an impact, which may be direct or indirect, occurred involving the vehicle driven by the accused. (3) occasioning death or grievous bodily harm to another person, and (4) at the time of the impact the accused was driving the vehicle: (a) under the influence of intoxicating liquor or of a drug; or (b) at a speed dangerous to another person; or (c) in a manner dangerous to another person.60 Section 52A(5) sets out a non-exhaustive list of circumstances in general terms as to when a vehicle is involved in a direct impact, including ‘overturning or leaving a road’; ‘impact between any object and the vehicle’; ‘impact of the vehicle with another vehicle’; or ‘impact between the person and the vehicle’. Indirect impacts are when the vehicle driven by the accused causes another impact, such as between two other vehicles or another vehicle and an object.61

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In relation to being ‘under the influence of intoxicating liquor’, the accused is presumed to be driving in that condition at the time of the impact where the accused has a blood-alcohol concentration of 0.15 or more as determined by an analysis of a blood sample taken within two hours of the impact. 62 Where the presumption does not apply, proof that the accused was under the influence of intoxicating liquor or drug is a question of fact. Opinions may then be given by lay or expert witnesses, including police officers, regarding the extent of the intoxication of an accused ascertained through observation, coordination tests or expert analysis of the available evidence, including the blood-alcohol concentration reading. The High Court has recently confirmed that the test for driving at a speed or in a manner dangerous to another person is objective. This element is proved if there is potential danger to another person who might reasonably be expected to be on the road, because of the speed the vehicle was travelling or the manner in which it was being driven.

A CASE TO REMEMBER King v The Queen (2012) 245 CLR 588 Mr King was convicted of two counts of culpable driving causing death after driving his car past a ‘Give Way’ sign and colliding with a truck that was entering an intersection in Victoria. Mr King’s two passengers were killed as a result of the collision. Later analysis found that Mr King had a high level of tetrahydrocannibol (the psychoactive component of cannabis) in his blood at the time of the incident; however, there was no evidence to suggest that Mr King had been driving erratically prior to the collision with the truck. Mr King’s appeal to the High Court was dismissed by 3:2 majority.63 In reaching its decision, the Court (unanimously on this point) endorsed the earlier decision in McBride v The Queen (1966) 115 CLR 44 where Barwick CJ observed at 49–50: [Driving at a speed or in a manner dangerous involves] a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense ­potentially dangerous to [another person or persons] … [driving at a speed or in a manner dangerous] requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not ­speculatively, potentially dangerous to others. …

The High Court also confirmed (again unanimously on this point) that negligence was not an element of the offence of dangerous driving. In a joint judgment, French CJ, Crennan and Kiefel JJ observed that the ‘formulation of the requisite level of risk … on the premise that negligence is an element of the offence under s 319 … was erroneous’ (at 609).64

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In R v Hain (1966) 85 WN (Pt 1) (NSW) 7, the New South Wales Court of Criminal Appeal stated that ‘manner of driving’ includes all matters connected with the management and control of the vehicle when it is being driven—that is, starting and stopping, signalling or failing to signal, and sounding a warning or failure to do so, as well as other matters affecting the speed at which and the course in which the car is driven. In fact it has been held that ‘speed’ can be a part of ‘manner’ of driving. 65 Falling asleep at the wheel can amount to driving in a manner dangerous to another person if there is a preceding period of dangerous driving that may be regarded as contemporaneous with the impact, such as an accused driving in a tired or drowsy condition; there is actual or imputed knowledge that there was a significant risk they would fall asleep; and that they continued to drive the vehicle.66 There is a statutory defence provided in s 52A(8) of the Crimes Act 1900, which requires the accused to establish on the balance of probabilities that the death or injury was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor or a drug, or was driving at a speed or in a manner dangerous to another person.67 The relevant authorities emphasise that the accused must show that the death or injury occasioned by the impact was not in any way attributable to the accused’s condition or manner of driving—that is, there is an absence of a causal connection. This defence is not applicable in Victoria where the accused’s culpable or dangerous driving must be proved by the prosecution to be the cause of the death or serious injury. Where ‘dangerous’ driving cannot be established, there are lesser alternative offences in New South Wales of ‘negligent driving’ occasioning death or grievous bodily harm available under Road Transport Act 2013 (NSW) s 117(1)(a)–(c). The cases of R v Hopton (Unreported, Court of Criminal Appeal (NSW), Spigelman CJ, Abadee and Ireland JJ, 8 October 1998), DPP v Vella [1999] NSWSC 49 and DPP (NSW) v Yeo (2008) 188 A Crim R 82 clearly illustrate that the concept of negligent driving is different from driving in a manner that is dangerous. This form of negligence is not the criminal negligence of negligent manslaughter. Rather, in relation to the control of motor vehicles, negligence is conveniently defined as ‘careless, unheedful, inattentive’, expressions that direct attention to the attitude of the driver, in contrast to the formulation ‘driving in a manner dangerous’, which looks to the actual or potential effect on others.68 The question to be asked in cases of negligent driving is whether the accused was exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.69 In South Australia, offences of ‘causing death or harm by dangerous use of a vehicle or vessel’ are provided for in s 19A of the Criminal Law Consolidation Act 1935 (SA). This section encompasses a range of dangerous uses of a motor vehicle, including driving in a culpably negligent manner, recklessly, or at a speed,

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or in a manner dangerous to any person. There is clearly a mental element to be established for reckless and culpably negligent uses of a motor vehicle whereas the other conduct of driving at a speed or in a manner dangerous to the public imports a strict liability standard. The range of offences equates to the offences found in ss 318 and 319 of the Crimes Act 1958 (Vic), with the prosecution required to prove a direct causal link between the particular dangerous use of the vehicle and the death or harm to a person. Note also the driving without due care offences in s 45 of the Road Traffic Act 1961 (SA), which seem to share some similarities with the negligent driving offence in New South Wales.

Important references For more extensive coverage of the substantive law relating to murder, manslaughter, and causing death or serious injury by driving motor vehicles, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014) Chapter 2 ‘Homicide and Actus Reus’ 40–86, Chapter 3 ‘Murder and Mens Rea’ 87–132 and Chapter 5 ‘Involuntary Manslaughter’ 230–71. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 9 ‘Unlawful Killing’ 503–59. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 9 ‘Homicide: Murder and Involuntary Manslaughter’ 737–828. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 5 ‘Unlawful Homicide’ 155–88 and Chapter 3 ‘Driving Offences’ 70–94. Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 2 ‘Murder’ 71–121 and Chapter 4 ‘Involuntary Manslaughter’ 163–203. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004) Chapter 3 ‘Homicide’ 89–151.

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 What is the difference between an intention to kill and reckless indifference to human life? 2 In the absence of an admission from an accused, how does the prosecution prove the existence of such mental states beyond reasonable doubt? 3 ‘Victims jumping out of windows, refusing blood transfusions, having heart attacks, or having doctors treat them incompetently means assaults are turning into homicides.’ Discuss the test for establishing that the accused caused the death of the victim in homicide cases. 4 What are the essential differences between the tests for the two categories of involuntary manslaughter? 5 Can both categories be used as alternative bases for liability in a case presented by the prosecution? 6 Distinguish between what constitutes criminal negligence, driving in a manner dangerous to another person and negligent driving.

Problem questions SCENARIO 1 Mick is an alcoholic. Recently, his employment at Casey’s Liquor Barn was ­terminated. Mick then repeatedly failed in his efforts to obtain alternative employment. Feeling ­depressed, he decided to get some alcohol to drown his sorrows. As he had no ready cash, Mick removed his semi-automatic pistol from its hiding place in his flat and walked to Casey’s Liquor Barn. Mick walked into the store and greeted Jenny, an employee who was stacking shelves. Mick selected six bottles of vodka, six bottles of bourbon whisky and four cartons of beer. He placed them in a trolley and wheeled the trolley over to the cashier’s desk. He then ­removed the pistol from inside his coat, pointed it at the cashier and said, ‘This grog is mine, and while you’re at it, hand over the cash from the till’. At this time Len, the store manager, who had just returned to work after suffering a heart attack three months ago and undergoing a bypass operation, came up behind Mick, grabbed his shoulders and shouted, ‘Drop the gun, Mick, the cops are on their way!’ Len startled Mick, and as Mick turned around his finger pressed the trigger of the pistol, discharging a bullet that ricocheted off the metal shelving and struck Jenny in the head. The bullet penetrated Jenny’s brain and she died almost immediately. Mick turned the pistol towards Len and instructed him to get into the trolley, so that Mick could make his escape from the store. Len climbed into the trolley. Sitting on top of the cartons of beer, he said to Mick, ‘You’ll never control the weight in this trolley going down the exit ramp. Be reasonable and give yourself up!’ Mick jabbed the pistol into Len’s back and replied, ‘No way. I can steer this trolley. I used to wheel forty trolleys at a time up there!’ Mick then wheeled the trolley towards the ramp. Unbeknown to Mick, the cleaner had just completed washing the ramp with water and detergent. As Mick started to wheel the trolley down the incline, he lost his footing and slipped on the floor. He fell to the ground, breaking both legs, and let go of the trolley, in which Len was still seated atop the cartons of beer.

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The trolley careered down the ramp, went outside into the carpark and was struck by a Casey’s Liquor Barn delivery truck. Len was knocked out of the trolley and struck his head on the ground, causing extensive fracturing of the skull and brain injury. He was taken, ­unconscious, to the hospital, where he suffered another heart attack and died four hours later. Advise whether any charges of homicide might be established against Mick so as to warrant his prosecution. Do not discuss other possible offences except as they relate to possible murder charges. Do not discuss defences. SCENARIO 2 Reuben and Molly have been married for nine years; however, their relationship has become strained in recent months. Reuben and Molly tried to save their marriage by heading to a nearby rural retreat for the weekend. The retreat consisted of a number of log cabins in a secluded bushland setting. Shortly after they arrived at the retreat, Molly answered Reuben’s mobile phone. Molly was shocked to hear a woman’s voice saying, ‘Hi sweety! I didn’t think you’d be able to take my calls this weekend’, and quickly ended the call. Molly immediately confronted Reuben, told him that their marriage was over and exited the cabin. As Molly went to walk down the rather steep steps at the front of the cabin, Reuben reached out and touched Molly’s arm to get her attention. Molly jumped away from Reuben, slipped on the wet tiles and fell down the stairs. Reuben took Molly inside the cabin and laid her on the bed. Reuben saw that Molly was still breathing, but ­suspected she had suffered a serious head injury. Reuben panicked because he thought no one would believe him that Molly’s fall was an accident, and consumed some of the contents of the minibar to settle his nerves. After consuming approximately 300 millilitres of various spirits, Reuben decided to drive alone to a nearby hospital to get help. Reuben turned off the lights in the cabin and locked the door, leaving Molly on the bed in the cabin, before driving his car towards the exit from the retreat. The retreat was located in bushland about 1 kilometre from the nearest major road. The poorly maintained road between the retreat and the major road was only wide enough to accommodate one vehicle. It was approximately 10 pm when Reuben was driving; it was raining and the path was unlit. Reuben had not turned on the headlights on his vehicle. Reuben rounded a corner and was dazzled by the headlights of an oncoming vehicle; almost before Reuben knew it, those headlights were gone. Reuben assumed that the vehicle had passed him and continued on his way. Reuben arrived at the hospital, and broke down when trying to explain his story to emergency staff. The hospital staff realised that Reuben was intoxicated, and initially ignored his ramblings. Police (on other business) arrived at the hospital some hours later, spoke with Reuben and ascertained that there had been an incident at the retreat. At some point, a sample of Reuben’s blood was taken; the sample contained 0.12 grams of alcohol per 100 millilitres of blood. Police arrived at the retreat and found Molly ­unconscious inside the cabin. She was rushed to hospital and placed on life support. Molly died two days later after her next of kin decided to remove life support. Post-mortem examination revealed that Molly died as a result of a serious brain injury; an expert report indicated Molly may have survived if she had received treatment earlier. At about 10.00 am the following day, scene of crime officers entering the retreat noticed tyre marks leading away from the poorly maintained road leading into the retreat.

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The scene of crime officers found Linus deceased in his vehicle, which had struck a tree. ­Investigators later examined Reuben’s vehicle, which showed no signs of any direct ­collision with Linus’ vehicle. Advise whether Reuben is likely to face any charges relating to the deaths of Molly and Linus. Do not discuss other possible offences except as they relate to those charges. Do not discuss defences. For suggested solutions to problem questions, please visit .

Notes 1 See Lane v The Queen (2013) 241 A Crim R 321, 334–9 for a useful overview of the law of homicide in New South Wales. 2 See Alison Wallace, Homicide: The Social Reality (1986) excerpts in David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 738–40. Also, see Willow Bryant and Tracy Cussen, Homicide in Australia: 2011–12 National Homicide Monitoring Program Annual Report, Australian Institute of Criminology (2015) 5–8, 16–21. 3 This common law rule has not been ousted in New South Wales, where murder is now a statutory offence—see R v Downs (1985) 3 NSWLR 312; see also R v Kanaan (2005) 64 NSWLR 527, 550 [75]. 4 In these jurisdictions only the maximum punishment for murder is set out in the ­legislation: Criminal Law Consolidation Act 1935 (SA) s 11; Crimes Act 1958 (Vic) s 3. 5 This is derived from the definition stated by Coke CJ, Institutes of the Laws of England (Vol 3, 1797) 47. There must be coincidence of the mens rea and actus reus—see Chapter 2 at pp 29–30 and reference to the case of Meyers v The Queen (1997) 147 ALR 440. 6 R v Van Beelan (1973) 4 SASR 353 at 403. 7 See Crimes Act 1958 (Vic) s 3A and Criminal Law Consolidation Act 1935 (SA) s 12A. 8 See Human Tissue Act 1983 (NSW) s 33; Human Tissue Act 1982 (Vic) s 41; and Death (Definition) Act 1983 (SA) s 2 for a definition of ‘death’. 9 R v Chamberlain (No 2) (1984) 51 ALR 225. 10 R v Hutty [1953] VLR 338; R v Iby [2005] NSWCCA 178; Barrett v Coroner’s Court of South Australia (2010) 108 SASR 568. 11 The statement of principle as to voluntariness in this case was affirmed in a r­estatement of the principle by the High Court in Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 per Gummow and Hayne JJ at [49], [53]. Also, see R v Butcher (1985) 16 A Crim R 1, 13–17 (where Ryan was considered and applied in a case involving an attempted armed robbery of a store attendant with a knife) and Penza and Di Maria v R [2013] NSWCCA 21, [154]–[167]. 12 For example, see Aruthilakan v The Queen [2003] HCA 74 at [35], [57]. 13 See R v Hallett [1969] SASR 141; R v Evans and Gardiner (No 2) [1976] VR 523; R v Moffatt (2000) 112 A Crim R 201; and Dunkley-Price v The Queen [2015] VSCA 310. 14 Burns v The Queen (2012) 246 CLR 334, 364 [87] (Gummow, Hayne, Crennan, Kiefel and Bell JJ): ‘[a]bsent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another’. 15 Such as the action of the incoming tide was argued to be in R v Hallett [1969] SASR 141.

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16 See R v Moffatt (2000) 112 A Crim R 201 as to the accused’s actions making a substantial contribution to ‘accelerating’ the death of a victim who was vulnerable to the risk of sudden death by virtue of existing coronary artery disease (at 213). See also Aidid v R (2010) 25 VR 593; [2010] VSCA 56; R v Lawson (No 3) (2012) 226 A Crim R 138; and R v McCarthy [2015] SASCFC 177. 17 R v Malcharek; R v Steel [1981] 2 All ER 422. 18 R v Jordan (1956) 40 Cr App R 152; R v Cheshire [1991] 1 WLR 844. 19 This is the common law head of reckless murder. In New South Wales, only reckless indifference to human life is sufficient under Crimes Act 1900 s 18. 20 At common law, grievous bodily harm is defined as ‘really serious bodily harm’: R v ­Miller (1951) 58 ALR 749, DPP v Smith [1961] AC 290, Pemble v The Queen (1971) 124 CLR 107, R v Hunter (1989) 44 A Crim R 93; and Haoui v R (2008) 188 A Crim R 331. See Chapter 5 for a full discussion of this legal concept. 21 Also, see R v Annakin (1988) 17 NSWLR 202 and R v White, Eaves and Parker (1988) 17 NSWLR 195, where the New South Wales Court of Criminal Appeal held that to equate reckless indifference to human life with a realisation ‘that he might well cause death’ or ‘that death might well result’ was a misdirection as it suggested a possibility that it could happen rather than the probability that it was likely to happen. See also Campbell v R (2014) 312 ALR 129. 22 R v Solomon [1980] 1 NSWLR 321. 23 In New South Wales, the foundation crime is not required to be an offence of violence; see R v Lin (No 2) [2014] NSWSC 1710, [32]–[36]. 24 R v Elliott and Hitchins (1983) 9 A Crim R 238; Hudd v R [2013] NSWCCA 57. 25 Crimes Act 1958 (Vic) s 3A(2). 26 See generally R v Kageregere [2011] SASC 154, [128]–[147]. 27 R v Coomer (1989) 40 A Crim R 417, 422–23; R v Presley (2015) 122 SASR 476, 489. 28 These authorities were R v Larkin [1943] 1 All ER 217; DPP v Newbury and Jones [1977] AC 500; Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62; R v Wills [1983] 2 VR 201 and R v Holzer [1968] VR 481. 29 See Director of Public Prosecutions (Vic) v Singleton (2010) 29 VR 351. 30 See, for example, Withers v The Queen (No 2) [2010] VSCA 151, [23] and the various authorities cited therein. 31 Cato [1976] 1 WLR 110; Rogers [2003] 1 WLR 1374 and Kennedy (No 2) [2005] 1 WLR 2159; Withers v The Queen (No 2) [2010] VSCA 151. 32 Mr Burns was also convicted of manslaughter, but died prior to the appeal to the High Court. 33 Criminal negligence manslaughter by omission is addressed in further detail at pp 168–9. 34 R v Pullman (1991) 58 A Crim R 222; see also The Queen v Nguyen [2012] VSC 579. 35 R v Cramp (1999) 110 A Crim R 198; see also R v Borkowski (2009) 195 A Crim R 1, 4 [3] (Simpson J). 36 R v Farrar (Unreported, Court of Criminal Appeal (NSW), Priestley JA, Wood and Finlay JJ, 6 May 1991). 37 R v Wills [1983] 2 VR 201, 214. 38 Director of Public Prosecutions (Victoria) v TY (2006) 14 VR 430. 39 R v Thomas [2015] NSWSC 537, [49], [71]; see generally [49]–[72]. Compare R v Van Gelder (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Newman and Sully JJ, 28 February 1994).

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47 48 49 50

51 52 53 54 55 56 57

R v Dawson (1985) 81 Cr App R 150. The Queen v Chai [2002] HCA 12, [20]–[25]. R v Moore [2015] NSWCCA 316, [142], [144] (Simpson JA). See R v Taktak (1988) 14 NSWLR 226; Burns v The Queen (2012) 246 CLR 334; and R v Moore [2015] NSWCCA 316. R v Lavender (2005) 222 CLR 67; R v Thomas Sam; R v Manju Sam (No 17) [2009] NSWSC 803. See also Patel v The Queen (2012) 247 CLR 531 regarding ­circumstances in which reference to special knowledge on the part of the accused is appropriate. In South Australia, this type of case would now be covered by the specific crime of ‘criminal neglect’ under Criminal Law Consolidation Act 1935 s 14. For a feminist perspective on this case, see Lois Bibbings, ‘R v Stone and Dobinson —Judgment’ in Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford: Hart Publishing, 2010) 234. The feminist judgment revisits the facts of the case, acknowledging the difficulties experienced by the defendants who themselves suffered from mental disabilities and their unsuccessful attempts to get help for the deceased, who might be recognised as anorexic. It is judged that blame for the death can be more readily attributed to the wider community and the state for their failures to care for the family as a whole rather than to the defendants. Julia Quilter, ‘Criminalisation of Alcohol-Fuelled Violence: One-Punch Laws’ in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (2015) 83–4. See Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 138D–H for procedures relating to proof of intoxication at the relevant time. Crimes Act 1900 (NSW) s 25B(1). Crimes Act 1900 (NSW) s 25A(3)–(4). See, for example, Julia Quilter, ‘Responses to the Death of Thomas Kelly: Taking ­Populism Seriously’ (2013) Current Issues in Criminal Justice 439; Julia Quilter, ‘The Thomas Kelly Case: Why a “One Punch” Law is Not the Answer’ (2014) 38 ­Criminal Law Journal 16; Julia Quilter; ‘One Punch Laws, Mandatory Minimums and ­“Alcohol-Fuelled” as an Aggravated Factor: Implications for NSW Criminal Law (2014) 3 International Journal for Crime, Justice and Social Democracy 81; Andrew Hemming, ‘Please Mind the Gap: An Assessment of Fatal “One-Punch” Provisions in Australia’ (2015) 39 Criminal Law Journal 130; Julia Quilter, ‘Populism and Criminal Justice Policy: An Australian Case Study of Non-punitive Responses to Alcohol Related Violence (2015) 48 Australian and New Zealand Journal of Criminology 24; and Julia Quilter, ‘Criminalisation of Alcohol-Fuelled Violence: One-Punch Laws’ in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (2015). Crimes Act 1958 (Vic) s 4A(1). Crimes Act 1958 (Vic) s 4A(4). Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the ­Common Law Jurisdictions (4th edn, 2014) 268. Ibid. Crimes Act 1958 (Vic) s 319. Crimes Act 1900 (NSW) s 52A(1)–(2). Circumstances of aggravation are set out in s 52A(7). Crimes Act 1900 (NSW) s 52A(3)–(4). Circumstances of aggravation are set out in s 52A(7).

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58 Giorgianni v The Queen (1985) 156 CLR 473; R v Helmling (Unreported, Court of ­Criminal Appeal (NSW), Hunt CJ at CL, Allen J, Loveday AJ, 11 November 1993). 59 Jiminez v The Queen (1992) 173 CLR 572. 60 Whelan v The Queen (2012) 228 A Crim R 1, 17 [81] (Schmidt J). 61 Crimes Act 1900 (NSW) s 52A(6). 62 Crimes Act 1900 (NSW) s 52AA(1)–(3). 63 At Mr King’s trial, the jury was directed on both culpable and dangerous driving ­charges. This course was adopted because dangerous driving causing death was available as a statutory alternative verdict to the culpable driving causing death charges; see Crimes Act 1958 (Vic) s 422A(1). On appeal (to both the Victorian Court of Appeal and the High Court), Mr King argued that the trial judge had erroneously understated the legal test for dangerous driving when charging the jury, which might have led the jury to ‘discount the alternative verdict as an inadequate reflection of the seriousness of Mr King’s conduct’ (at 610). The majority (French CJ, Crennan and Kiefel JJ) found that the jury direction was ‘infelicitous but did not involve a misstatement of the law’ (at 611), and dismissed Mr King’s appeal as there was no miscarriage of justice in this case. 64 Compare the judgment of Bell J (at 622–7) who, while agreeing that negligence is not an element of the dangerous driving offence, explains how the concept of negligence can be used as an explanatory device in cases involving criminal negligence and ­dangerous driving (and/or negligent driving in the New South Wales context). See also R v Pearse (2011) 58 MVR 435. 65 R v McBride (1965) 115 CLR 44; R v Hain (1966) 85 WN (Pt1) (NSW) 7. 66 R v Kroon (1990) 52 A Crim R 15; Jiminez v The Queen [1992] 173 CLR 572. 67 R v F (1956) 74 WN (NSW) 211; R v Windle (1957) 75 WN (NSW) 63. 68 See R v McBride (1965) 115 CLR 44; R v Buttsworth [1983] 1 NSWLR 659 and R v Hopton (Unreported, Court of Criminal Appeal (NSW), Spigelman CJ, Abadee and Ireland JJ, 8 October 1998). 69 See Taylor v Rodgers (1960) 124 JP 217; Geneff v Townshend [1970] WAR 20; DPP (NSW) v Yeo (2008) 188 A Crim R 82.

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PROPERTY OFFENCES COVERED IN THIS CHAPTER In this chapter, you will learn about: • the offence of larceny or theft • other dishonest property offences—fraud and receiving • robbery • burglary or breaking and entering.

CASES TO REMEMBER Foster v The Queen (1967) 118 CLR 117 Barker v The Queen (1983) 153 CLR 338 Stanford v The Queen (2007) 70 NSWLR 474

STATUTES TO REMEMBER Crimes Act 1958 (Vic) ss 71–77, 81–82, 88–88A Criminal Law Consolidation Act 1935 (SA) ss 130–135, 137, 139, 168–170 Crimes Act 1900 (NSW) ss 94–98, 105A, 111–113, 117–118, 121, 124–125, 155–163, 192B–192E, 527C

INTRODUCTION ‘Stealing’ in everyday usage may conjure up an image of a person in a supermarket or department store surreptitiously putting expensive grocery items or beauty products into their bag or concealing them in the pockets of their clothing and then walking out of the store without paying for them. This type of dishonest conduct amounts to ‘larceny’ or ‘theft’ at law, the core criminal property offence. However, offences against property extend to a much wider range of both dishonest and violent conduct.

IMAGINE THIS SCENARIO Mark drove to Nadia’s house. Finding that she wasn’t at home, he forced open a rear door and walked inside the house. He then collected various items including a television, wireless home theatre and music systems, wireless audio speakers, a laptop computer, a digital camera, a leather jacket and a large suitcase. Mark placed all these items into his car and drove away. When Nadia returned home to find these various items missing, she made a report to the police and informed them that she suspected Mark had taken them.

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Later, the police spoke to Mark and he admitted taking the items from Nadia’s house, but asserted that he owned some of the items. Further, he asserted that he had taken the rest of the items as ‘collateral’ for a loan of $3000 that he had made to Nadia three months ago when they were living together, and which she had not repaid. Nadia denied that any of the items taken actually belonged to Mark and claimed that when they separated two months ago, Mark had moved out of Nadia’s house, taking all of his property with him. As to the $3000 ‘loan’, Nadia claimed that the money was a birthday gift from Mark.

This scenario raises a number of issues relating to criminal property offences. At first it seems Mark has illegally broken into Nadia’s house and stolen her property. The later assertions by Mark, however, raise the question whether he has in fact acted dishonestly in taking the property from Nadia’s house. The subsequent responses by Nadia would, if true, return us to our first impression that Mark is a thief. Disputes about money and ownership of property are common in human relationships and a complex range of criminal offences have been created over time as part of the legal framework in dealing with such disputes. Keeping these initial pictures of ‘stealing’ or ‘theft’ in our minds, we will now explore the various legal concepts related to the intersection of property and criminal law.

THE OFFENCE OF ‘LARCENY’ OR ‘THEFT’ Larceny is a crime that developed at common law and has its historical roots in relatively straightforward notions of property. Simply stated, larceny involves the dishonest taking and carrying away of the tangible personal property of one person by another without the former’s consent. In Victoria and South Australia, this common law offence has been replaced with statutory offences of theft, which share some common elements with the larceny offence. The statutory offences of ‘theft’ are as follows:

CRIMES ACT 1958 (VIC) S 72

CRIMINAL LAW CONSOLIDATION ACT 1935 (SA) S 134

Basic definition of theft

(1) A person is guilty of theft if the person deals with property— (a) dishonestly; and (b) without the owner’s consent; and (c) intending— (i) to deprive the owner permanently of the property; or (ii) to make a serious encroachment on the owner’s proprietary rights.

(1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

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Compare these statutory offences to ‘larceny’, which applies in New South Wales and is defined at common law as follows: [L]arceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.1

Looking at the conduct (actus reus) and mental (mens rea) elements of theft and larceny, Table 8.1 presents a basic comparison of these elements at common law with the statutory offences in South Australia and Victoria. TABLE 8.1 Comparison of elements of common law larceny with statutory theft JURISDICTION

LEGISLATION/ COMMON LAW

CONDUCT ELEMENTS (ACTUS REUS)

MENTAL ELEMENTS (MENS REA)

New South Wales

•• Croton v The Queen (1967) 117 CLR 326; Ilich v The Queen (1987) 162 CLR 110 (common law definition) •• Crimes Act 1900 (NSW) s 117 (penalty)

•• Property capable of being stolen •• In the possession of another (who may or may not be the legal owner) •• Is taken and carried away (‘asportation’) •• Without the consent of the owner

•• Property taken fraudulently (dishonestly) •• With intent to permanently deprive the owner •• Without a claim of right made in good faith

Victoria

•• Crimes Act 1958 (Vic) Part 1, Div 2—ss 72 and 73 (definition and further explanation); s 74 (penalty)

•• ‘Property’ (as defined in s 71) •• Appropriated by a person •• Belongs to another person

•• Property appropriated dishonestly •• With the intention to permanently deprive the other of it

South Australia

•• Criminal Law Consolidation Act 1935 (SA) Part 5, Div 2— s 134 (definition and penalty)

•• ‘Deals’ with ‘property’ (as defined in s 130) •• Without the owner’s consent

•• Deals dishonestly with property; and •• Intending to permanently deprive; or •• To make a serious encroachment on the owner’s proprietary rights

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THE CONDUCT ELEMENTS (ACTUS REUS) OF LARCENY AND THEFT WHAT SORT OF PROPERTY IS LIABLE TO THEFT OR LARCENY? ‘Property’ that can be the subject of ‘theft’ in Victoria and South Australia is broadly defined in the legislation.2 It extends to money, real property and personal property, including intangibles or ‘things in action’, such as cheques, bills of exchange (written orders for a sum of money to be paid to a person), deeds and insurance policies. In relation to ‘real property’, land cannot be stolen, but fixtures (items permanently attached to land) and parts of the land may be if they have been severed from the land.3 At common law, the property stolen must be tangible, although only a very slight physical element is necessary.4 Intangible property, such as a bill of exchange or money in a bank account,5 cannot be stolen.6 In New South Wales, this gap in the common law has been remedied by the creation of a specific offence of ‘stealing a valuable security’ under s 134 of the Crimes Act 1900 (NSW).7 As it is necessary for the property to be taken and carried away, real property cannot be the subject of a larceny. Whether an item is classified as real property will depend on a number of factors such as the method by which an item is affixed to land, the use to which it is put and the damage that would be caused by its removal. 8 These common law requirements again resulted in gaps that have been remedied by specific statutory provisions. For example, ss 139 and 140 of the Crimes Act 1900 (NSW) provide offences for the stealing of fixtures to buildings and land, and the stealing of trees and shrubs from gardens.9 At common law, the property must also have value. However, this is very broadly construed and does not necessarily need to be monetary value: the owner may attach sentimental value to property and this is sufficient.10

WHAT ARE THE REQUIREMENTS FOR OWNERSHIP OF ­PROPERTY BEFORE THERE IS THEFT OR LARCENY? Each jurisdiction has a requirement that, to prove theft or larceny, the property must be owned by or belong to another person, or be in their possession or control. In New South Wales the common law definition refers to owners or those in possession. The Victorian and South Australian theft provisions contain definitions of an ‘owner’, which include those in possession, with control of property, or having proprietary rights or interests in the property.11 The concept that property has an owner or belongs to another can be divided into three broad categories, which are not mutually exclusive.

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LEGAL OWNERSHIP The legal owner is one who has exclusive proprietary rights over the property. For example, if you own a laptop computer, you have, in legal terms, proprietary rights in the computer such as the right to use, loan or sell it, and to exclude others from using it. You can lend it to another or leave it for repairs, but as the legal owner you have a right to recover possession of it when you want it back or it has been repaired.

POSSESSION Possession includes actual and constructive possession. Actual possession is continual physical custody of property whereas constructive possession involves retaining control of property even though you do not physically hold the property. For example, a car dealer will retain possession of a car even if a customer takes it for a test drive. The party in possession must generally demonstrate exclusivity 12—that is, the right to legally exclude others from physical access to the property. As an example, couriers often have possession of, and the rights to exclude most other people from, the property they are delivering, but they do not own it. People can also ‘possess’ at law something that they have no legal right to possess, such as an illicit drug.13

CUSTODY OR CONTROL A person has custody or control of property when they have manual keeping of the property or have created a situation where they can have manual custody of the property when they choose. A person may exercise custody or control over property even if they do not have the rights to ownership or possession. 14 Custody, as opposed to possession, is often short-term and established by physical control alone. An example is an employee who uses equipment owned by their employer for a short-term job; that is, they take the equipment into their manual keeping only while completing the job.15 In many situations it will be clear who owns property or has property in their possession or control. What of the situations, however, where property is freely given to another by mistake, or where it has been found?

Mistake Consider a situation where you are given too much change for an item you have purchased in a store and you decide to keep the excess. You obviously have possession of the overpayment, but are you the legal owner? The Victorian legislation has a deeming provision stating that when property is received by mistake and the recipient has an obligation to make restoration it remains the legal property of the party who gave it.16 There is no South Australian or common law equivalent of this

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provision, so guidance can be taken from the leading Australian cases of R v Potisk (1973) 6 SASR 389 and Ilich v R (1987) 162 CLR 110. In Potisk an accused had changed traveller’s cheques at a bank where the teller, having applied the wrong exchange rate, had overpaid him. In Ilich an employee realised he had been overpaid by his employer after he had finished his final shift. In Ilich the High Court held that generally legal ownership of property will not pass if the property has been given over to another as a result of one of three fundamental mistakes: (1) a mistake as to the identity of the person receiving the property (2) a mistake as to the essential nature of the property being delivered, or (3) a mistake about the amount of property being handed over. The payment of money is treated differently from other types of property due to its nature as currency. Legal ownership of money generally passes with possession whereas that is not the case with other forms of property. In Potisk, the court held that there was no fundamental mistake; the teller had not been mistaken as to the identity of the accused, there had been no mistake as to the nature of the property and a mistake had not been made as to the amount of money passed. The teller had simply applied the wrong exchange rate. In Ilich, even though the wrong amount of money had been handed over, the accused had not realised this at the time of receipt and given the nature of money—namely that possession and ownership generally pass simultaneously—it meant that the mistake had not been fundamental. In both cases, the court emphasised the importance of the special nature of money as a medium of exchange. Generally, ownership of property will not pass if the accused realises there has been a mistake at the time property is handed over.17 Therefore, a person may legally pass ownership, custody and control of an incorrect amount of money if the recipient does not realise the mistake at the time and only later forms the mens rea to retain the extra amount (such as in the situations in the cases of Potisk and llich, considered above). The fundamental mistakes discussed above will also be relevant in establishing whether the property has been taken without consent. 18

Finding When an accused has found property, they may still be guilty of larceny or theft even though the property is not in the possession of anyone at the time of finding. Another person may still have legal ownership or constructive possession of the property at that time. An owner will still have legal rights over lost property unless it has been abandoned19 and the owner of land on which property is found may have constructive possession of the property.20 Cases of larceny or theft by finding will often turn on whether the accused has the mens rea of dishonesty, rather than whether the property is owned by anyone. Whether a finding of property is ‘dishonest’ will generally depend on the

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belief of the accused as to whether the owner can reasonably be found. This requires consideration of factors such as where the property is found, if it has any distinguishing marks or characteristics and what attempts the accused has made to find an owner. The definitions of dishonesty in both the Victorian and South Australian legislation contain provisions reinforcing the common law approach that it will not be dishonest to keep found property if the accused has a reasonable belief that the owner could not be located by taking reasonable steps.21

HOW MUST THE PROPERTY BE DEALT WITH BEFORE THERE IS THEFT OR LARCENY? Larceny was originally the crime of physically taking another’s personal property and carrying it away, and these remain as physical elements of the offence at common law. It is often called ‘asportation’ and has been interpreted liberally so that even the slightest movements of property are sufficient.22 Despite this liberal judicial interpretation, it became increasingly obvious that there were many situations where property had been dishonestly obtained without a taking or carrying away, and new statutory offences were introduced to cover these circumstances.23 The theft offences in South Australia and Victoria have wider definitions of the required physical acts of ‘dealing’ and ‘appropriation’. Under the Victorian legislation, a person must ‘appropriate’ property. There is no comprehensive definition, but ‘any assumption by a person of the rights of an owner’, including a later assumption of a right of ownership where a person has come by the property innocently, amounts to an ‘appropriation’.24 An owner of property clearly has certain rights, such as the right to use, sell, lend or prevent others from possessing or using the property. An accused does not have to assume all of these rights to have appropriated the property. For example, in Stein v Henshall [1976] VR 612 an accused was found to have appropriated a car despite the fact that he had used the car on only a couple of occasions and the owner may still have had access to it. In Wilson v Woodrow (1987) 26 A Crim R 387, merely sitting in a stolen car was found to be an appropriation. In DPP (Vic) v Brownlie and Brownlie (a pseudonym) [2015] VSCA 147, providing property to a third party as security for a loan amounted to an appropriation (even where the accused hoped to repay the loan and thus reclaim the property and return it to the owner).25 In South Australia it is sufficient if a person ‘deals’ with property, which they do ‘if the person (a) takes, obtains or receives the property; or (b) retains the property; or (c) converts or disposes of the property; or (d) deals with the property in any other way’.26 To ‘convert’ property means to use it in some way that is inconsistent with the legal rights of a person who has ownership or possession of that property, such as selling a bicycle that had earlier been lent to you on the basis that you would return it to the owner once you finished using it. Due to the broad range of specified activities

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covered by ‘dealing’, it is likely that contentious cases would be primarily determined by consideration of the consent or otherwise of the owner.

WHAT ARE THE REQUIREMENTS AS TO CONSENT OF THE OWNER? The common law definition of larceny requires the taking of property to be without the consent of the owner (or the person in possession or control); that is, it amounts to a trespass.27 This has caused problems in circumstances where the original acquisition of property was a trespass because the owner did not consent to it, but the taker did not have the requisite mens rea. This is illustrated by the case of R v Riley (1853) Dears 149; 169 ER 674, where a farmer had accidentally included one of his neighbour’s lambs in his flock. This amounted to a trespassory taking as it involved the physical removal of the lamb from the neighbour’s flock without his consent. When the farmer subsequently realised the mistake, he decided to sell his neighbour’s lamb in addition to his own. The court held that, as the original taking was a trespass, it ‘continued’ until the mens rea was formed, and that it thus satisfied the elements of larceny.28 This was called the doctrine of ‘continuing trespass’ and satisfied the requirements of a coincidence between the taking and the dishonest intent. The common law also expanded to cover situations where an accused received property with consent but later formed the necessary intent to steal. Section 134(1)(b) of the Criminal Law Consolidation Act 1935 (SA) provides that the dealing with property must be without the owner’s consent. ‘Consent’ in this jurisdiction includes express and implied consent, and consent given by someone who has authority to consent on behalf of the owner. It does not, however, include consent obtained through dishonest deception.29 Proving a lack of consent is not an express element of theft in Victoria, but it may be relevant to whether there has been an ‘appropriation’, and it is relevant to the mental element of dishonesty. 30 There is no requirement for an original trespassory taking in the statutory provisions and a subsequent dishonest use of property innocently obtained amounts to theft. 31 This means that the problems experienced in the common law do not arise in South Australia and Victoria. The requirement that there must be a trespassory taking of the property without consent at common law, or a dealing without consent in South Australia, is more problematic where the property is not taken from someone’s possession. Consider situations in which a victim gave the property to another for a specific purpose, was tricked into giving the property voluntarily, or gave the property by mistake. In these situations there may be no trespassory taking (common law) and consent has been given (common law and South Australia). The extent or effect of the consent given will be based on the circumstances of each case. For example, the ability to withdraw excess money from a bank’s ATM due to a computer malfunction is not

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consent to take the money,32 and the display of goods in a shop with the implied consent to handle and examine them is not a consent to attempt to conceal them, damage them or take them without payment.33 The consent must involve a positive intention to pass ownership of the property to the person receiving it. In response to circumstances where a victim is persuaded to part with their property by fraud or a trick, the common law has expanded over time to encompass a range of other offences, for example ‘larceny by a trick’. This offence shares all the elements of basic larceny, with the exception that it is not necessary to prove a lack of consent if consent has been obtained by a deception or trick. 34 There are also common law offences such as ‘larceny by a bailee’, ‘larceny by a clerk or servant’ and ‘embezzlement’. These offences deal with situations where owners have entrusted property to the accused for a limited purpose and the property has subsequently been taken by the accused for another purpose or has been dishonestly converted to their own use.35 Finally, when property has been handed over to another due to a mistake, ownership of the property will not pass if it was as a result of one of the three fundamental mistakes.36 The making of such a mistake also means that there has been no consent by the owner.

THE MENTAL ELEMENTS (MENS REA) OF LARCENY AND THEFT Before turning to each mental element of larceny or theft, it is important to note that these elements are often interdependent—the existence of one of the requisite mental elements may assist in establishing another.

WHAT AMOUNTS TO DISHONEST OR FRAUDULENT TAKING OF PROPERTY? All jurisdictions require a mental element of dishonesty in the actions of the accused for proof of larceny or theft. Although the common law definition of larceny originally required a ‘fraudulent’ taking, it is now settled that the terms ‘fraudulently’ and ‘dishonestly’ are interchangeable.37 In New South Wales, the term ‘dishonesty’ is defined at common law for the purposes of the offence of larceny.38 The two predominant English cases on the meaning of ‘dishonesty’, R v Feely [1973] 1 QB 530 and R v Ghosh [1982] 1 QB 1053, have strongly influenced the development of the common law. In Australia the High Court has accepted the test from R v Feely that the determination of whether an accused has a dishonest state of mind is a question of fact where the fact-finder applies the ‘current standards of ordinary decent people’. 39 It was held in Peters v The Queen (1998) 192 CLR 493 that the correct approach is for the trial

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judge to identify the knowledge, belief or intent that will render the act dishonest. If the jury is satisfied that the accused had such knowledge, belief or intent, and that it is dishonest by the standards of ordinary people, the test is satisfied. However, in Peters, the court did concede that there will be some cases where dishonesty has been used in a ‘special sense’ in legislation, which will warrant a different test. This largely objective approach has subsequently been approved by the High Court in Macleod v The Queen (2003) 214 CLR 230.40 In Victoria, under the Crimes Act 1958 (Vic) s 73(2) a person’s appropriation of property is not to be regarded as dishonest: (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. Further, it is provided under s 73(3) that a person’s appropriation of property may be dishonest even if they were willing to pay for the property. A series of cases 41 has established that dishonesty is a question of law in this jurisdiction and that it is restricted to the circumstances set out in s 73(2). Accordingly, the prosecution must prove that none of these circumstances applied to the accused for their appropriation of property to be characterised as dishonest. In South Australia, a detailed definition of dishonesty is provided in s 131 of the Criminal Law Consolidation Act 1935 (SA) as follows: 131—Dishonesty (1) A person’s conduct is ‘dishonest’ if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting. (2) The question whether a defendant’s conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury’s own knowledge and experience and not on the basis of evidence of those standards. (3) A defendant’s willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty. (4) A person does not act dishonestly if the person— (a) finds property; and (b) keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps; and (c) is not under a legal or equitable obligation with which the retention of the property is inconsistent.

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(5) The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way. … (6) A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property. …

This legislative formulation is a combination of the common law approach and aspects of the negative definition of ‘dishonesty’ in the Victorian legislation. Subsections (1) and (2) closely accord with the tests in Feely and Ghosh. Subsections (4), (5) and (6) cover situations of finding, honest mistaken belief and otherwise honest belief that a person has a legal right or equitable right—that is, a fair entitlement, to particular property.

WHAT CONSTITUTES AN INTENTION TO PERMANENTLY ­DEPRIVE AN OWNER OF THEIR PROPERTY? In all jurisdictions the prosecution must prove that the accused intended to permanently deprive the victim of the property. In South Australia, however, it will also be sufficient if the accused makes a ‘serious encroachment on the owner’s proprietary rights’. ‘Serious encroachment’ is defined under s 134(2) of the Criminal Law Consolidation Act 1935 (SA). It essentially involves the accused treating the property as their own regardless of the owner’s rights, or dealing with the property so as to create a ‘substantial risk’ of the owner not getting it back or receiving it back in a way that its value has been substantially reduced. To cover situations where an accused claims an intention to return the property or to pay for it, legislative provisions in New South Wales and Victoria declare that an intention to return property, or to reimburse the owner for its loss, does not preclude a finding of larceny or theft.42 There is no equivalent provision in South Australia, but this is balanced somewhat by the lower threshold of the alternative requirement of proof of a serious encroachment on the owner’s proprietary rights. Therefore, ‘borrowing’ property, with intent to return it or pay for it, can amount to larceny or theft in some circumstances, particularly if the property is used in a way that diminishes its value to the owner.

A CASE TO REMEMBER Foster v The Queen (1967) 118 CLR 117 This case is an example of where a temporary taking and use of property was held not to be larceny. The accused took a gun from his friend, intending to show it to someone else and then to return it later the same day. On appeal against conviction for larceny, a new trial was ordered with the court distinguishing between taking possession of property for a limited time and taking possession and exercising ownership of property notwithstanding

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an intention to return it later. Resolving an issue as to the accused’s intention to permanently deprive will depend largely upon evidence of the accused’s actions, such as the duration of the ‘borrowing’ and the way the property was used. Acts diminishing the value of the property, for example using it so that the owner will not be able to use it again, are prima facie evidence of an intention to exercise ownership and therefore to permanently deprive the owner of the property.43 In the circumstances of this case the accused’s actions showed an intention only to take possession of the gun for a limited time and not to permanently deprive the owner of property in it.

Similarly, Crimes Act 1958 (Vic) s 73(12) specifically provides that a borrowing or lending may amount to a theft if the period and circumstances make it ‘equivalent to an outright taking or disposal’. Under s 73(13) an accused treats property as their own when they part with property belonging to another person conditionally in circumstances where they may not be able to retrieve it (for example, leaving property as security for a loan which they may not be able to repay).44 Finally, in relation to motor vehicles, specific ‘joyriding’ offences that apply to circumstances where a motor vehicle is taken only to be used temporarily and then returned or abandoned without diminishing its value have been created. Taking a conveyance45 without the consent of the owner is deemed to be larceny under s 154A of the Crimes Act 1900 (NSW). A similar provision is found in Crimes Act 1958 (Vic) s 73(14). There is a separate offence of ‘using a motor vehicle without consent of the owner’ under Criminal Law Consolidation Act 1935 (SA) s 86A.

WHAT IS A CLAIM OF RIGHT MADE IN GOOD FAITH? A claim of right involves a genuine belief by the accused that they are legally entitled to the property taken. In the scenario on pp 185–6, Mark’s assertions that he owned some of the property he took from Nadia’s house and that the rest was taken as collateral for the $3000 ‘loan’ amount to a ‘claim of right’ by Mark. A claim of right is traditionally a denial of dishonesty and in South Australia and Victoria it is not a specific defence; the absence of a claim of right is relevant to establishing the dishonesty element of the offence.46 At common law, the factors necessary to raise a claim of right are clearly set out in R v Fuge (2001) 123 A Crim R 310. First, the claim must be a belief in a legal right of entitlement to the property, not a mere moral right. Therefore, an employee taking extra money from an employer when they believe they deserve a pay rise cannot be a claim of right.47 Second, the accused must honestly believe they are entitled to the property, even if such a belief is not legally correct or reasonable. 48 It is sufficient if the accused takes property different from that which they believe they have a right to as long as the property taken is of equal value; a claim of right is not available where the claim extends only to part of the property taken.49

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Once evidence of a claim of right has been sufficiently raised by the accused, the prosecution has the onus of negating it. Although use of violent or illegal means to recover property coupled with a claim of right was successfully used to avoid conviction for robbery in R v Langham (1984) 36 SASR 48, doubt was cast over this decision by Heydon JA in R v Fuge (2001) 123 A Crim R 310. The accused may not have acted dishonestly in such circumstances, but the use of violence to retrieve the property exposes the accused to prosecution for offences relating to the method employed to claim the property, such as assaults or weapons charges. 50

OTHER DISHONEST PROPERTY OFFENCES The gaps in the common law of larceny meant that novel and more contemporary methods of dishonestly obtaining property from others51 were not covered. This resulted in adaptations of the larceny offence to encompass deceptive conduct or the formation of a dishonest intention after coming into possession of property. These offences of larceny by a trick, larceny by a bailee, larceny by a clerk or servant, embezzlement and fraudulent appropriation relate to dishonest use of property or money that has been initially legitimately received by the accused, including being received by them on behalf of an employer or another person. These are largely now separate statutory offences in the Crimes Act 1900 (NSW)52 and will not be further considered in this book. In contrast, there is considerable overlap between theft and deception offences in South Australia and Victoria, due in part to the fact that an accused can be convicted of theft despite the fact that the victim consented to the appropriation or dealing with the property, and when they obtain property innocently but subsequently form the requisite mens rea for theft. Also, the broad reach of the statutory theft offences make fraudulent conversion offences unnecessary. Property received by an accused is deemed to remain the property of the owner if the accused is under an obligation to deal with the property in a certain way.53

FRAUD OFFENCES Each jurisdiction has also created ‘fraud’ offences of obtaining or attempting to obtain property or a financial advantage, or causing a financial disadvantage, through dishonest or deceptive means. Significantly, these offences apply when a victim has passed possession and legal ownership to the accused. The major fraud offences in each jurisdiction can be found in the following statutory provisions: •• Crimes Act 1900 (NSW) s 192E—by any deception, dishonestly ‘obtaining property belonging to another’ or ‘obtaining any financial advantage’ or ‘causing any financial disadvantage’54 •• Crimes Act 1958 (Vic) ss 81–82—‘obtaining property by deception’ and ‘obtaining a financial advantage by deception’

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Criminal Law Consolidation Act 1935 (SA) ss 130 (meaning of ‘deception’) and 134—deception is a species of ‘theft’ in relation to property; and s 139—a general ‘deception’ offence relating to obtaining a ‘benefit’ or causing a ‘detriment’. The new offence in s 192E of the Crimes Act 1900 (NSW) essentially codifies the law in relation to fraud in New South Wales. However, the s 192E fraud offence and related statutory definitions draw on many familiar concepts in this area of the law; case law that both predates the New South Wales reforms may be highly relevant to the interpretation of elements of the fraud offences. Therefore, the elements of these offences in New South Wales and Victoria can be briefly outlined with reference to relevant statutory provisions and case law: •• ‘Obtaining property’ includes gaining ownership, possession or control of property;55 ‘obtaining a financial advantage’ includes inducing a third party to do something that results in the accused or another obtaining a financial advantage, or keeping a financial advantage that one already has whether permanent or temporary.56 •• The accused must intend to deprive the victim permanently of the property obtained by fraud.57 In both New South Wales and Victoria, this concept is extended by statutory definition to include the accused treating property as their own regardless of the victim’s rights.58 •• ‘Financial advantage’ has been broadly interpreted by the courts in accordance with the ordinary meanings of the words.59 Also, the advantage must have a financial element60 and includes a valueless cheque.61 •• ‘Deception’ includes deliberate or reckless words or conduct as to fact or law, and also extends to causing computers or machines62 to make responses that a person is not authorised to cause them to make.63 There is clearly a wide range of scenarios that can amount to deception.64 The deception used must be causally connected to the obtaining of the thing in question.65 •• The accused must either intend that their conduct amounts to a deception or be reckless as to whether or not they are practising a deception.66 Therefore, if the accused knows there is a risk that their words or conduct amount to a deception as defined above, and is indifferent to the risk, in the sense of not caring, the mental element is made out. •• The accused must act dishonestly. In regard to ‘obtaining by deception’ offences, it is important to note that there appears to be a different test of dishonesty compared to theft or larceny offences.67 For the purposes of the fraud offences in New South Wales, dishonesty is defined in s 4B of the Crimes Act 1900 (NSW) to mean ‘dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people’. 68 In contrast, it has been held in Victoria that the test of dishonesty for obtaining by deception is to focus on the subjective belief by the accused in the existence of ••

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a claim of right to the property rather than judging dishonesty by the standards of ordinary people.69 Part 4AA of the Crimes Act 1900 (NSW) provides for three additional fraud offences. Two of those offences effectively partially codify the law of attempt in relation to fraud offences, and apply where an accused ‘dishonestly destroys or conceals accounting records’ (s 192F) or ‘dishonestly makes or publishes … any statement … that is false or misleading in a material particular’ (s 192G) with the intention of obtaining property or a financial advantage, or causing a financial disadvantage. The third offence applies where an officer of an organisation dishonestly makes a false or misleading statement with the intention of ‘deceiving members or creditors of the organisation about its affairs’ (s 192H). Fraudulent acquisitions, such as those covered by the New South Wales and Victorian legislation discussed above, are a species of theft in South Australia. This is due to the fact that the owner’s consent to the dealing with the property will be negated if the accused knows the consent is obtained by a ‘dishonest deception’. Deception is defined in Criminal Law Consolidation Act 1935 (SA) s 130 to mean: a misrepresentation by words or conduct and includes— (a) a misrepresentation about a past, present or future fact or state of affairs; or (b) a misrepresentation about the intentions of the person making the misrepresentation or another person; or (c) a misrepresentation of law.

Further, there is a general ‘deception’ offence under Criminal Law Consolidation Act 1935 (SA) s 139, resort to which will only generally be necessary if what has been obtained is not property (for example, a financial advantage) or if a specific element of theft cannot be established. The elements of the deception offence are that an accused must deceive another person and by doing so dishonestly benefit themselves or a third person, or dishonestly cause a detriment to the victim of the deception or a third person. ‘Benefit’ is defined under s 130 as ‘(a) a benefit of a proprietary nature; or (b) a financial advantage; or (c) a benefit that might be conferred by the exercise of a public duty in a particular way’. ‘Detriment’ has the converse meaning to ‘benefit’. Dishonesty has the same meaning that also applies to theft offences in s 131.70

RECEIVING AND HANDLING STOLEN GOODS Criminal property offences also encompass those who receive or handle property acquired dishonestly, even if the accused played no role in their original dishonest acquisition. Each jurisdiction has different statutory ‘receiving’ offences, although there are some common elements: •• Crimes Act 1900 (NSW) ss 188–189—‘Receiving stolen goods’—differing penalties based on whether original stealing was a serious indictable or a minor indictable offence

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Crimes Act 1958 (Vic) s 88—‘Handling stolen goods’ Criminal Law Consolidation Act 1935 (SA) s 134—‘receiving’ is a species of ‘theft’, as ‘deal’ extends to the activity of someone who ‘obtains, receives, retains, converts or disposes’ of property (s 130). First, in relation to the New South Wales offence of ‘receiving stolen goods’, the elements are that: •• the property in question had been stolen—note the extended meaning of ‘stolen’ property under Crimes Act 1900 (NSW) s 18771 and that property must retain its status as stolen property at the time it is received by the accused •• the accused received the property—they must have brought the property within their control and must be in a position to physically possess it •• the accused knew it was stolen at the time it was received—this involves a subjective test of the actual knowledge or belief72 of the accused, which may be inferred from the circumstances surrounding the receipt of the property. It is not sufficient if the accused gains knowledge after receipt of the property; 73 however, there are the discrete offences of disposing or attempting to dispose of stolen property under ss 188 and 189 Crimes Act 1900 (NSW), which can be committed by acting when the guilty knowledge or belief is acquired after the property is received. Even though the test of the accused’s knowledge is purely subjective it may be tempered in practice by use of the doctrine of recent possession. Put simply, this doctrine infers that a person found in possession of property recently stolen knows the property is stolen unless they can give a reasonable explanation as to how they came to be in possession of the property.74 The meaning of ‘recent’ is somewhat flexible and will depend on the circumstances and the value of the property. 75 The offence of handling stolen goods under Crimes Act 1958 (Vic) s 88(1) comprises similar elements to the ‘receiving’ offence, but is broader in scope. It provides: •• ••

88 Handling stolen goods (1) A person handles stolen goods if knowing or believing them to be stolen goods he dishonestly receives the goods or brings them into Victoria, or dishonestly undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.

This definition can encompass a range of actions that may not constitute receiving in New South Wales, such as arranging for dealings with the property irrespective of physical control or possession. There is an element that the accused acted dishonestly in receiving the goods. The three criteria that will negate dishonesty for theft offences do not apply to the offence of handling stolen goods, but a legal claim

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to the goods will negate dishonesty,76 as will an intent to return the goods to their owner or the police.77 The requirements that ‘stolen goods’ must be handled78 and that the accused must have ‘knowledge or belief’ that the goods are stolen closely reflect the New South Wales provisions. In South Australia, the broad definition of ‘deal’ in s 130 of the Criminal Consolidation Act 1935 (SA) extends to ‘obtains, receives, retains, converts or disposes’ of property so that actions that constitute ‘receiving’ or ‘handling stolen goods’ are a species of theft in this jurisdiction. In this way the proof of all the elements of theft as set out in Table 8.1 will be necessary to establish a ‘dealing’ as ‘receiving’. Because of the potential for overlap in the various dishonest property offences, each jurisdiction has a system of statutory alternative verdicts. Thus an accused may be charged with larceny or theft and receiving, and convicted of either offence depending on the evidence.79

GOODS IN CUSTODY Each jurisdiction has also created summary offences whereby an accused can be convicted if they are in possession of property which ‘may reasonably be suspected of being stolen or unlawfully obtained’ as follows: •• Crimes Act 1900 (NSW) s 527C—‘unlawfully in possession of property’ •• Summary Offences Act 1966 (Vic) s 26—‘unexplained possession of personal property reasonably suspected of being stolen’ •• Summary Offences Act 1953 (SA) s 41(1)—‘unlawful possession of personal property’. To prove an offence ‘the prosecution must establish that the accused was in possession of property that is (South Australia and Victoria) or may be (NSW) ‘reasonably suspected of being stolen or otherwise unlawfully obtained’. The New South Wales provision may have a broader application as it has been held that the fact property ‘may be reasonably suspected of being stolen or otherwise unlawfully obtained’ negates the need to connect the property with a specific offence. 80 The suspicion must be objectively reasonable. Therefore, the nature of the property found (for example, if it is unique or distinguishable from other property) and the circumstances in which it was found, including the behaviour of the accused, will be particularly relevant.81 It has been held that the prosecution need not disprove all lawful explanations as to how the property came to be in the accused’s possession to establish reasonable suspicion.82 Each provision provides for a defence if the accused can satisfy the court on the balance of probabilities that they had no reasonable grounds for believing the property was obtained dishonestly (New South Wales),83 can give a satisfactory account of how they came by such property (Victoria) or can prove that the property was obtained honestly (South Australia).

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ROBBERY Due to the more threatening nature of thefts involving the use of violence, statutory offences of ‘robbery’ have been enacted in each jurisdiction to provide for higher maximum penalties. A simple definition of robbery is a larceny or a theft involving the use, or threatened use, of violence or force. The common law of robbery and the legislative provisions in Victoria and South Australia contain many similar elements, and a comparison is provided in Table 8.2. TABLE 8.2 Robbery—comparison of common law and statutory provisions

Crimes Act 1900 (NSW)

CONDUCT ELEMENTS (ACTUS REUS) Common law Smith v Desmond [1965] AC 960 •• Physical elements of larceny; and •• use of violence or threat of violence before or during taking of the property •• s 94 (penalty)

MENTAL ELE­ VIOLENCE/ MENTS (MENS FORCE USED REA) AFTER TAKING

CIRCUMS­ TANCES OF AGGRAVATION

•• Mental elements of larceny; and •• violence or threat of violence must have been intended to overcome resistance

•• Use of corporal violence, intentionally or recklessly inflict actual bodily harm, deprivation of liberty (s 95) •• Section 95 circumstance PLUS wounds or inflicts grievous bodily harm (s 96) •• Use of ‘offensive weapon’ or being in company (s 97(1)); ‘dangerous weapon’ (s 97(2)) •• Section 97(1) circumstance PLUS wounds or inflicts grievous bodily harm (s 98)

•• Stealing from the person (s 94) •• Separate charges of assault and stealing from the person

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Crimes Act 1958 (Vic)

Criminal Law Consolidation Act 1935 (SA)

CONDUCT ELEMENTS (ACTUS REUS) •• Physical elements of theft; and •• uses force, puts person or attempts to put person in fear of force immediately before or during robbery (s 75) •• Conduct elements of theft; and •• uses force or threatens to use force to commit theft or escape the scene (s 137)

MENTAL ELE­ VIOLENCE/ MENTS (MENS FORCE USED REA) AFTER TAKING

CIRCUMS­ TANCES OF AGGRAVATION

•• Mental elements of theft; and •• force/fear of force is intended to enable commission of robbery

•• Possibility •• ‘Armed acts done to robbery’ use enable escape of firearm, encompassed imitation within firearm, ‘appropriation’ explosive, (R v Hale imitation (1978) 68 Cr explosive or App R 415) ‘offensive weapon’ (s 75A)

•• Mental elements of theft; and •• force/threat of force is intended to enable commission of the theft or escape from the scene

•• Includes acts done immediately after the theft (s 137(1) (b)), includes escaping the scene (s 137 (1)(a)(ii))

Circumstances of aggravation as applicable (s 5AA)

By way of amplification and guidance, when looking for facts to prove that there has been a robbery it is important to establish that: •• the intent to steal was present at the time the violence was used or the threat of violence was made, so that an accused who assaults someone for an unrelated reason and then seizes on the opportunity to steal from them is not guilty of robbery;84 generally, violence must be used, or a threat of violence made, before or during the larceny, not when the larceny is complete85

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the degree of violence used, or the seriousness of the threat, was designed to overpower the victim or prevent their resistance rather than be incidental 86 •• the property taken was in the actual physical or constructive possession of the victim.87 The statutory offence of robbery under Crimes Act 1958 (Vic) s 75 is very similar to the common law definition; however, while at common law and in South Australia it is sufficient to threaten violence or force, in Victoria the threat of force must be enough to cause personal intimidation.88 The victim need not be fearful; it is sufficient if the accused has sought to put them in fear. In the case of R v Butcher [1986] VR 43, the Victorian Supreme Court also held that the threat of force can be implied. Both the Victorian and South Australian legislative provisions use the expression ‘force’ as opposed to the ‘violence’ required at common law. It is not clear what purpose the distinction serves, but it may be that ‘force’ is a wider concept than violence. An interesting distinction in Criminal Law Consolidation Act 1935 (SA) s 137 is a specific provision that an accused is guilty of a robbery if they use or threaten force against another in an attempt to escape the scene of the theft. This has the effect of ‘widening’ what can amount to a robbery in South Australia to include force, or threats of force, used in a getaway. Stealing from the person is a specific form of larceny that requires that the property be taken from the immediate physical possession of the victim, as in, for example, a bag snatch. It differs from robbery in that there is no element of the use of violence or threats of violence. Rather, it is usually committed by stealth. What will constitute the immediate physical possession extends beyond the actual person. For example, in R v Delk (1999) 46 NSWLR 340, an accused who took items placed on a shop counter by a sales assistant was held to be guilty of stealing from the person. Each jurisdiction also provides for aggravated forms of robbery, as set out in the far right column of Table 8.2. The common forms of aggravation are being ‘in company’ (that is, ‘the victim is confronted by the combined force or strength of two or more persons’),89 being armed with an ‘offensive weapon’, and causing injury to a victim. There is a broad definition of ‘offensive weapon’ in each jurisdiction, 90 and various everyday items can be intended to be so used and converted to use as an ‘offensive weapon’.91 ••

BURGLARY OR BREAKING AND ENTERING The final type of serious property offence we will consider are the offences known at common law as burglary and housebreaking. Essentially, these offences involved entering land or buildings and then stealing property or committing another offence.

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A number of statutory offences across the three jurisdictions have been created to cover these circumstances as follows: •• Crimes Act 1900 (NSW) ss 109–113: ‘Breaking and entering offences’ •• Crimes Act 1958 (Vic) ss 76–77: ‘Burglary’ and ‘Aggravated burglary’ •• Criminal Law Consolidation Act 1935 (SA) ss 167–170A: ‘Serious criminal trespass’. The concept in New South Wales is significantly different from the understandings in South Australia and Victoria. In both South Australia and Victoria, a central element of ‘burglary’ offences is that the entry must comprise a ‘trespass’—that is, entering land or a building without the consent of the person who owns or has possession of that land or building. To enter as a trespasser, it has been established at common law that the accused must satisfy two elements. They must: (1) physically commit an act of trespass (actus reus), and (2) know they do not have permission to enter the property, or demonstrate reckless indifference as to whether they have permission to enter the property for the purpose they intended (mens rea).92

A CASE TO REMEMBER Barker v The Queen (1983) 153 CLR 338 In this case a person who had been left with a key to ‘mind’ his neighbours’ house while they were away used the opportunity to take some of their property. It was argued that the accused had permission to enter so he could not have entered the building as a trespasser. The High Court found that even when authority to enter premises has been given, it is a trespass to enter the property with an intention inconsistent with that authority. It is more difficult, however, to determine the scope of the authority to enter with regard to places such as as shops when people obviously have permission to enter but only for implied purposes. The majority of the Court in Barker found that, generally, shoplifters are not guilty of burglary offences as the permission to enter a shop is reasonably broad. This may be different when an accused has entered a specific part of a shop or public place that is off limits to the public, as there is no permission to enter that part. 93 It can be burglary to enter a part of a building under Crimes Act 1958 (Vic) s 76. If a person has permission to enter a house but then enters part of the house for which they have no permission to enter, such as a separate room, it would amount to burglary if something were stolen from this room.

The intent to commit a further offence after the entry is an essential element in Victoria and the intention to steal ‘anything in the building’ is sufficient under Crimes Act 1958 (Vic) s 76(1)(a). To commit a ‘serious criminal trespass’ in South Australia, an accused must enter or remain in a non-public ‘place’ as a trespasser with the intention to commit an offence against the person, a theft offence or an offence involving damage to property.94 There is a distinction between serious criminal

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trespass offences in non-residential buildings95 and residences,96 with higher penalties for the latter offences. In New South Wales, burglary-type offences are styled ‘breaking and entering’ under the Crimes Act 1900 (NSW). These offences include entering a dwelling house with intent to commit a serious indictable offence (s 111); breaking into a dwelling house or other building and committing any serious indictable offence (s 112) or with intent to commit any serious indictable offence (s 113); and breaking out of a dwelling house after entering with intent to commit a serious indictable offence (s 109). There is also an offence of ‘stealing from a dwelling house’ (s 148), irrespective of how entry was effected. Essentially, proof is required of: •• a ‘breaking’ or an ‘entering’ (or both). To constitute a ‘breaking’, the physical acts can be very minor, such as opening an unlocked door.97 This also includes constructive breaking, such as gaining entry to a property through an agent, or by a trick or deception.98 ‘Entry’ is satisfied when an accused places any part of their body inside a building.99 •• the commission of, or intent to commit, a ‘serious indictable offence’, 100 which includes larceny and a range of other offences. Often, proof of an intention to commit such an offence will be satisfied by inference from the specific conduct of the accused when breaking in.

A CASE TO REMEMBER Stanford v The Queen (2007) 70 NSWLR 474 Mr Stanford was charged with breaking and entering a pavilion and committing a serious indictable offence under Crimes Act 1900 (NSW) s 112.101 The prosecution alleged that Mr Stanford was part of a joint criminal enterprise,102 having agreed to a plan whereby his accomplice Mr Shaw would break into Sawtell Bowling and Recreation Club and steal money from within the premises. On the chosen evening, Mr Shaw entered the club via a window that had been left partly open; Mr Shaw encountered a cleaner inside the club and violently attacked him, causing very serious injuries (including the loss of an eye). Mr Stanford was convicted after trial, but appealed his conviction (in part) on the basis that the act of further opening the partly open window did not amount to a ‘breaking’ at law. The Court of Criminal Appeal (Grove, Hulme and Simpson JJ) upheld Mr Stanford’s appeal on this point. Justice Simpson observed (at 479) that the Crimes Act 1900 (NSW) does not define the word ‘break’, and then analysed (at 479–80) the ‘fine distinctions [that] have been drawn between what does, and what does not, constitute “breaking” for the purposes of [the s 112 offence]’. The decision in R v Smith (1827) 1 Mood CC 178 established one of those fine distinctions; the case is authority for the proposition that ‘further open[ing] an already open window [that was not otherwise secured], or a door which is ajar, is not a breaking’. Justice Simpson accepted Mr Stanford’s argument that the court should follow Smith, and that the evidence therefore disclosed no breaking.

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Justice Simpson concluded her judgment by questioning whether the outcome was consistent with the ‘modern approach to criminal law’ (at 483), and called aspects of Crimes Act 1900 (NSW) s 112 to the attention of law reform agencies.

There are a wide range of buildings to which these offences apply although some are restricted to a ‘dwelling house’. ‘Dwelling house’ is broadly defined in Crimes Act 1900 (NSW) s 4 to include structures that have never been occupied, boats or vehicles in which a person resides, and ancillary structures within the same curtilage, which is essentially the yard or grounds of the house. There is a similarly wide definition of ‘place of residence’ in Criminal Law Consolidation Act 1935 (SA) s 170; however, in s 169 the ‘non-residential’ places are limited to buildings or parts of buildings not used as a residence. In Victoria, the place trespassed must be a building or inhabited vehicle or vessel for the crime to be a burglary. There are provisions in each jurisdiction for aggravated forms of burglary and breaking and entering offences, including when the accused is ‘in company’, armed with an ‘offensive weapon’, inflicts injury on occupants or knows a person is lawfully present in the building at the time of entry.103

Important references For more extensive coverage of the law and principles relating to property offences, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the ­Common Law Jurisdictions (4th edn, 2014) Chapter 8 ‘Theft and Larceny’ 354–441, Chapter 9 ‘Deception and Fraud Offences’ 442–68 and Chapter 10 ‘Burglary, Robbery and Extortion’ 469–528. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 11 ‘Dishonest Acquisition’ 957–1048 (New South Wales students only). Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 12 ‘Property Offences’ 707–90. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 4 ‘Offences of Dishonesty’ 103–54 (South Australian students only). Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 7 ‘Stealing and Other Property Offences’ 307–55 (New South Wales students only). Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004) Chapter 6 ‘Property Offences Involving Stealing’ 251–332 and Chapter 7 ‘Property Offences Involving Deception’ 333–70. Charles R Williams, Property Offences (3rd edn, 1999).

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 Outline the conduct elements and mental elements of larceny or theft in your jurisdiction. 2 (a) How does the offence of receiving or handling stolen goods differ from larceny or theft? (b) Why is there provision for statutory alternative verdicts in relation to these ­offences? 3 Robbery is properly described as a compound offence. Summarise the elements of robbery that must be established by the prosecution. 4 What additional elements must be proved where an aggravated robbery offence is charged? 5 Describe what constitutes a burglary or break and enter offence. 6 How would you distinguish this offence from robbery?

Problem questions SCENARIO 1 Karen is shocked when her friend Barry gives her an expensive MP3 player for her birthday, especially as she knows Barry does not earn much money and has a young child to support. When Karen tells Barry it is too expensive to accept, Barry smiles and says, ‘Don’t you worry about that’. Not wanting to press the issue, Karen places the gift in a drawer, but does not remove it from its packaging. Karen continues to feel uneasy about the gift and the next day rings Barry and says that she cannot accept it. Barry replies, ‘Look, I told you not to worry about it, I’ve got about a dozen of them, let’s just say they fell off the back of a truck’. Feeling guilty and determined to be rid of the gift, Karen then opens the drawer and rewraps the MP3 player, deciding to give it to her niece as a birthday present the following weekend. When police arrive to question Karen several days later, she states, ‘I wasn’t going to keep it; look, it’s still gift-wrapped’. What charges, if any, could the police bring against Karen? Why? SCENARIO 2 Harry is a retired horse trainer who still keenly follows the form and bets on the races. One Saturday night his neighbour, Max, visited Harry to watch a football game. While Max was in the toilet, Harry removed a $100 note from Max’s wallet. The next day Max noticed the money missing from his wallet and went back to Harry’s house to ask him if he had seen the money. Max found Harry in a jubilant mood and when Max asked about the money, Harry replied, ‘Yeah, I was a bit short so I borrowed it off you to invest on a sure thing today. I’m sorry I didn’t ask you but I knew it would get up and now I can pay you back and then some. It was just a loan. Even if I hadn’t won anything I still would have paid you back, you know that’. Discuss Harry’s criminal liability for taking the $100 from Max’s wallet. SCENARIO 3 Having recently been retrenched from his job and expecting a lengthy delay in receiving his redundancy payment, Ronaldo Ferrari was panicking about his financial situation. He had a substantial mortgage to pay on his house and was financially supporting his wife and seven children. While visiting his mother in hospital, he discussed his financial problems

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with his cousin, Luigi. Luigi said, ‘Is that Commodore you drive around insured?’ Ronaldo replied, ‘Yes, for $18,000’. Luigi then said, ‘Pity if it got stolen and you had to make a claim on your insurance’. Ronaldo smiled at Luigi, who then left the hospital ward. About one hour later, after visiting with his sick mother, Ronaldo went out to the hospital car park and found that his prized Commodore was missing. He immediately reported the matter to the police. The following day, the police contacted Ronaldo and informed him that his car had been found totally burned out in nearby bushland. Ronaldo then went to the local office of his insurance company and lodged an insurance claim in relation to the theft and ­destruction of his car. When he handed the claim to the clerk, Ronaldo said, ‘I have just been retrenched and now my car has been destroyed. Do you think I could get a cheque for the eighteen grand today?’ The clerk replied, ‘Come back later this afternoon, and I’ll see what I can do’. Ronaldo returned to the insurance office at 4.30 pm and the clerk said, ‘I’m sorry, we can’t pay you today, sir. The police have informed us that this theft has to be fully investigated and, from evidence they have obtained so far, there are some suspicious circumstances about the case’. Ronaldo began to panic and then removed a pistol he had brought with him from his jacket pocket, pointed it at the clerk and yelled out, ‘I need money, you’ve got my money, so hand it over!’ The clerk grabbed the cash from his cash drawer and threw it on the counter. Ronaldo picked up the cash and ran off. Some hours later, Ronaldo was apprehended by police at a city railway station and after a search was found to have $1520 cash on his person. Analyse the offences with which Ronaldo is likely to be charged. SCENARIO 4 Luke has a gambling addiction and needs to raise funds immediately in order to repay money he owes to a local moneylender. Having monitored the local area, Luke noticed that the house belonging to the Longgone family was vacant. Late one evening, Luke approached the rear of the house and tried to open several windows and doors without success. Luke eventually noticed that a ‘doggie door’ was marginally open; he was able to move the doggie door and squeeze through the gap into the house. Luke quickly moved through the house noting items he thought were valuable and worth taking. Luke was in the main hallway when he heard noises coming from the front door; he quickly entered the nearby study, grabbed several important looking documents before escaping by unlocking and jumping out of a window. Unfortunately for Luke, footage of these events was ­recorded by the Longgone’s security system. Analyse the offence(s) with which Luke is likely to be charged in this instance. For suggested solutions to problem questions, please visit .

Notes 1 Ilich v The Queen (1987) 162 CLR 110, 123 (Wilson and Dawson JJ). 2 See Crimes Act 1958 (Vic) s 71(1) and Criminal Law Consolidation Act 1935 (SA) s 130. There is also a broad inclusive definition of ‘property’ in Crimes Act 1900 (NSW) s 4. However, this definition does not apply to the offence of ‘larceny’. It applies only to those offences where the word ‘property’ is used in the offence description, such as in the s 192E fraud offence (see subs (1)(a): ‘obtains property belonging to another’).

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3 Criminal Law Consolidation Act 1935 (SA) s 135(2); Crimes Act 1958 (Vic) s 73(6)(b). 4 Gas can be stolen—see R v White (1853) Dears CC 203; 169 ER 696. Electricity could not be stolen at common law, but it is now a specific offence under the E ­ lectricity ­Supply Act 1995 (NSW). It is specifically included in the definition of ‘property’ in ­Criminal Law Consolidation Act 1935 (SA) s 130. See also State Electricity Commission Act 1958 (Vic) s 107 (reference to Electric Light and Power Act 1958 (Vic) s 51). 5 Croton v The Queen (1967) 117 CLR 326 per Barwick CJ. 6 Such property may, however, be the subject of fraud; see the discussion of the fraud offence in New South Wales, pp 197–9. 7 ‘Valuable security’ is broadly defined in Crimes Act 1900 (NSW) s 4 to include ‘any ­deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, ­order, or security whatsoever for money, or for payment of money … and every document of title to land or goods’. 8 See, for example, Billing v Pill [1954] 1 QB 70, where it was held that a shed could be property subject to larceny as it could be unbolted from its supports and taken away, causing limited damage. The general principles of the law of fixtures were usefully outlined in the Federal Court’s decision in National Australia Bank Ltd v Blacker (2000) 104 FCR 288. 9 There are also a number of miscellaneous larceny offences in ss 503–525 of the Crimes Act 1900 (NSW), ranging from stealing animals ordinarily kept in confinement to stealing rocks and library books. 10 R v Morris (1840) 173 ER 864; R v Edwards (1877) 13 Cox CC 384; see also Parsons v The Queen (1999) 195 CLR 619. 11 Criminal Law Consolidation Act 1935 (SA) s 130; Crimes Act 1958 (Vic) s 71(2). 12 Moors v Burke (1919) 26 CLR 265. Also, see Hayes v Fries (1988) 49 SASR 184. 13 Anic v R (1993) 68 A Crim R 313. See Chapter 9 for discussion of drugs offences. 14 Smith v Desmond [1965] AC 960. 15 State v Stahl 596 P 2d 275 (1979). 16 Crimes Act 1958 (Vic) s 73(10). 17 R v Gilks [1972] 3 All ER 280. 18 See discussion on pp 192–3 under the heading, ‘What are the requirements as to consent of the owner?’ 19 See R v MacDonald [1983] 1 NSWLR 729; see also Maingay v Charles [2009] TASSC 98. 20 Hibbert v McKiernan [1948] 2 KB 142. 21 Crimes Act 1958 (Vic) s 73(2)(c); Criminal Law Consolidation Act 1935 (SA) s 131(4). 22 See R v Thompson (1825) 1 Moody 78; Wallis v Lane [1964] VR 293. 23 These are considered in the section headed ‘Other dishonest property offences’, p 197. 24 Crimes Act 1958 (Vic) s 73(4). 25 See also Nguyen v The Queen [2015] VSCA 63, where compelling a victim to sign a receipt that might later be used to prove ownership of a motor vehicle did not amount to an appropriation; although the receipt was signed by the victim as a result of ­intimidation by the accused, the creation of the receipt was not an act of the accused that impaired the owner’s rights in relation to the vehicle. A subsequent act of taking possession of the car would, however, clearly amount to an appropriation for the ­purposes of Crimes Act 1958 (Vic) ss 72, 73(4). 26 Criminal Law Consolidation Act 1935 (SA) s 130. 27 Ilich v The Queen (1987) 162 CLR 110, 123 (Wilson and Dawson JJ).

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28 29 30 31 32 33 34

35 36 37 38

39

40 41 42 43 44 45

46 47 48 49 50

51 52

See also Minigall v McCammon [1970] SASR 72 and R v Potisk (1973) 6 SASR 389. Criminal Law Consolidation Act 1935 (SA) s 132. See R v Baruday [1984] VR 685; R v Roffel [1985] VR 511. Crimes Act 1958 (Vic) s 73(4); Criminal Law Consolidation Act 1935 (SA) s 134(3). Kennison v Daire (1986) 160 CLR 129. Kolosque v Miyazaki (Unreported, NSWSC, 17 February 1995). R v Wort [1927] VLR 560; see also R v Justelius [1973] 1 NSWLR 471. Note also that the fraud offences may be relevant where an accused obtains property through trickery; see discussion on pp 197–9 under the heading ‘Fraud offences’. These offences are now found in the Crimes Act 1900 (NSW) ss 125, 156–157 and 159–160. See p 190. Macleod v The Queen (2003) 214 CLR 230. A statutory definition of ‘dishonesty’ was enacted in New South Wales as part of the reform of the fraud offences in 2010; this definition can now be found in Crimes Act 1900 (NSW) s 4B. The statutory definition of dishonesty reflects the approach adopted in many other statutory schemes in other Australian jurisdictions and incorporates the additional layer added by the decision in Ghosh (discussed in note 39 below). The effect of the enactment of the statutory definition of dishonesty on the common law offence of larceny remains uncertain; see, for example, the conflicting views expressed in Alex Steel, ‘New Fraud and Identity Related Crimes in New South Wales’ (2010) 22 Judicial Officers’ Bulletin 17 and Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014) 432. However, it seems likely that the statutory definition of dishonesty will only apply to those offences where the word ‘dishonesty’ is used in the offence description. Ultimately, we await future judicial consideration of this matter. The additional layer added by Ghosh—that the accused must subjectively realise that what they were doing was dishonest by those standards—was rejected by the High Court as adding undue complexity. See, for example, SAJ v R (2012) 36 VR 435. R v Salvo [1980] VR 401; R v Brow [1981] VR 783; R v Bonollo [1981] VR 633; R v Todo (2004) 10 VR 244; see also Carrott v The Queen [2013] VSCA 90. Crimes Act 1900 (NSW) s 118; Crimes Act 1958 (Vic) ss 73(3), 73(12). See R v Smails (1957) 74 WN(NSW) 150. See, for example, DPP (Vic) v Brownlie and Brownlie (a pseudonym) [2015] VSCA 147. This term is broadly defined in Crimes Act 1900 (NSW) s 154A(2) to mean ‘any … motor car, caravan, trailer, motor lorry, tractor … motor or other bicycle … or any ship, or vessel’. See R v Bedford (2007) 98 SASR 514 in relation to the application of relevant legislative provisions in South Australia. Harris v Harrison [1963] Crim LR 497. R v Lawrence [1997] 1 VR 459. Astor v Hayes (1988) 38 A Crim R 219. See, for example, Kerrison v Richards [2013] ACTSC 262. See also the examples in Criminal Law Consolidation Act 1935 (SA) s 131(5)–(6), which usefully illustrate the relationship between claim of right and offences against the person. See R v Ward (1938) 38 SR (NSW) 308, 312. See ss 124–125, 156–161 of the Crimes Act 1900 (NSW).

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53 Criminal Law Consolidation Act 1935 (SA) s 130 (‘owner’ definition); Crimes Act 1958 (Vic) s 73(9). 54 Crimes Act 1900 (NSW) s 192E commenced operation on 22 February 2010; this section provides for one general fraud offence, which along with three other offences in ss 192F–192H replaces the extensive range of ‘fraud’ offences which previously existed in New South Wales. 55 See Crimes Act 1900 (NSW) s 192C(1); Crimes Act 1958 (Vic) s 81(2). 56 Crimes Act 1900 (NSW) s 192D(1); see also s 192D(2) in relation to causing a financial disadvantage. 57 Crimes Act 1900 (NSW) s 192C(2); Crimes Act 1958 (Vic) s 81(1). 58 Crimes Act 1900 (NSW) s 192C(4)–(5); Crimes Act 1958 (Vic) s 81(3). See also earlier discussion of Crimes Act 1958 (Vic) s 73(12)–(13) under the heading ‘What constitutes an intention to permanently deprive an owner of their property?’ on pp 195–6. It is likely that case law relating to the Victorian provisions will be influential in judicial interpretation of this aspect of the law in New South Wales. 59 Matthews v Fountain [1982] VR 1045. 60 In Coelho v Durbin (Unreported, NSWSC, Badgery Parker K, 29 March 1993), ­attempting to have a car registered after altering its identification details was held not to constitute a ‘financial advantage’ as it was not ‘a benefit which can be valued in terms of money’. 61 R v Vasic (2005) 11 VR 380. 62 The definition of ‘deception’ in Crimes Act 1900 (NSW) s 192B(1)(b) also extends to include ‘any electronic device’. 63 Crimes Act 1900 (NSW) s 192B(1); Crimes Act 1958 (Vic) s 81(4). 64 See the case examples of R v Lambie [1981] 2 All ER 776; Director of Public ­Prosecutions v Ray [1974] AC 370; and R v Kovacs [1974] 1 All ER 1236. 65 See R v Ho and Szeto (1989) 39 A Crim R 145. 66 Crimes Act 1900 (NSW) s 192B(2); R v Smith (1982) 7 A Crim R 437. 67 References to the meaning of ‘dishonesty’ in Crimes Act 1958 (Vic) s 73(2) apply only to theft offences. Conversely, the definition of ‘dishonesty’ in Crimes Act 1900 (NSW) s 4B applies to the fraud offences, but not to the common law offence of larceny. 68 As noted above, the statutory definition of dishonesty reflects the approach adopted in many other statutory schemes in other Australian jurisdictions and incorporates the additional layer added by the decision in Ghosh (discussed in notes 38 and 39 above). See also R v Love (1989) 17 NSWLR 608 with respect to claim of right in this context. 69 R v Salvo [1980] VR 401. 70 See the discussion on pp 194–5 under the heading ‘What amounts to dishonest or fraudulent taking of property?’ 71 ‘Stealing’ is defined to include ‘the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question’. 72 R v Raad [1983] 3 NSWLR 344; R v Schipanski (1989) 17 NSWLR 618; R v Dykyj (1993) 29 NSWLR 672. 73 Murphy v Porter (1984) 12 A Crim R 38. 74 Bruce v The Queen (1987) 61 ALJR 603; R v Bellamy [1981] 2 NSWLR 727. 75 See, for example, R v Millar (No 2) (2013) 227 A Crim R 556, 567–8. 76 R v Dickson (1865) 4 SCR (NSW) (L) 298. 77 R v Matthews [1950] 1 All ER 137. 78 See Audsley v The Queen (2013) 228 A Crim R 98.

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79 There are subtle variations in the position in each jurisdiction. In New South Wales, where an accused is charged with both larceny and receiving, the jury (or judge in trial by judge alone) may return a special verdict of guilty of larceny or receiving where they cannot determine which offence was committed. See Crimes Act 1900 (NSW) s 121; Saleam (1989) 41 A Crim R 108; R v Nguyen, (Unreported, NSWCCA, Hunt CJ, ­Ireland J, Bell AJ, 20 February 1997); and Geitz v The Queen (2013) 238 A Crim R 156. The Victorian position is similar to that in New South Wales, although Crimes Act 1958 (Vic) s 88A provides that the jury must acquit the accused of handling stolen goods and find them guilty of theft. In South Australia, an accused charged with receiving may be found guilty of theft; see Criminal Law Consolidation Act 1935 (SA) s 134(6). 80 Haken v Johnson (Unreported, NSWSC, Wood J, 15 October 1993). 81 See Anderson v Judges of District Court of NSW (1992) 27 NSWLR 701 and R v Cacu [2010] NSWDC 231. 82 R v Chan (1992) 28 NSWLR 421. 83 See Anderson v Judges of District Court of NSW (1992) 27 NSWLR 701; Long v DPP (NSW) [2008] NSWDC 194; and R v Cacu [2010] NSWDC 231. 84 R v Emery (1975) 11 SASR 169. 85 R v Emery (1975) 11 SASR 169; R v Foster (1995) 78 A Crim R 517. 86 R v Gnosil (1824) 171 ER 1206. 87 As to constructive possession, see Smith v Desmond [1965] AC 960, where it was held that robbery of a bakery had occurred despite the fact that cash was taken from a safe in an office area separate from where two employees had been assaulted, tied up and blindfolded. 88 R v Butcher [1986] VR 43, 50. 89 R v Brougham (1986) 43 SASR 187, 191 (King CJ). See also earlier discussion of the concept ‘in company’ in Chapters 5 and 6. 90 Criminal Law Consolidation Act 1935 (SA) s 5; Crimes Act 1900 (NSW) s 4; Crimes Act 1958 (Vic) s 77(1A). 91 See, for example, R v Nguyen [1997] 1 VR 551. 92 Barker v The Queen (1983) 153 CLR 338; R v Collins [1973] 1 QB 100. 93 For example, see R v Walkington [1979] 2 All ER 716. Contrast the decisions in The Queen v Chimirri [2010] VSCA 57 and Singh v The Queen (2013) 238 A Crim R 496. 94 The offence must be punishable by imprisonment for three years or more. 95 Criminal Law Consolidation Act 1935 (SA) s 169. 96 Criminal Law Consolidation Act 1935 (SA) s 170. 97 R v Hyams (1836) 173 ER 196. 98 See R v Boyle [1954] 2 QB 292. 99 R v Welker [1962] VR 244 per Lowe and Adam JJ at 245. 100 That is, an indictable offence punishable by imprisonment for five years or more— Crimes Act 1900 (NSW) s 4. 101 Note that relevant aspects of Crimes Act 1900 (NSW) s 112 were amended after the events in this case occurred. 102 This concept is addressed in greater detail in Chapter 10 ‘Extending Criminal ­Responsibility’. 103 See Crimes Act 1900 (NSW) s 105A; Criminal Law Consolidation Act 1935 (SA) ss 5AA (general factors), 170A (criminal trespass in a place of residence knowing another person is lawfully present in the place); and Crimes Act 1958 (Vic) s 77.

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DRUGS OFFENCES COVERED IN THIS CHAPTER In this chapter, you will learn about: • the mental element in drugs offences • possession of prohibited/controlled drugs • supply and trafficking offences • cultivation and manufacturing offences • Commonwealth importation legislation.

CASES TO REMEMBER He Kaw Teh v The Queen (1985) 157 CLR 523 R v Filippetti (1978) 13 A Crim R 335 Momcilovic v The Queen (2011) 245 CLR 1

STATUTES TO REMEMBER Controlled Substances Act 1984 (SA) Drug Misuse and Trafficking Act 1985 (NSW) Drugs, Poisons and Controlled Substances Act 1981 (Vic) Criminal Code (Cth) Part 9.1

INTRODUCTION Curiously, despite being some of the more common criminal offences and ranging across a wide spectrum from minor possession and use to commercial trafficking, drugs offences are not traditionally discussed in criminal law texts. This does not mean that the laws relating to prohibited drugs are straightforward; rather, as our discussion will show, the statute and case law applicable to drugs offences is quite complex. While there are interesting historical, public policy and social studies of the development of drug laws—and of the utility and ethics of using the criminal law to regulate the harm caused by the use of prohibited drugs—the issues they address are beyond the scope of this book.1 Instead, we will focus on laws regulating prohibited drugs. Largely these laws are statutory creations, some aspects of which can be said to undermine certain fundamental principles of the criminal law. 2 Examples include offences that have been interpreted to involve strict and absolute liability so not requiring proof of mens rea of an accused, offences which ‘deem’ an accused to have a specific intention and shift the onus of proof onto the accused

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to disprove such intention, and an expansion of liability for remote involvement in offences, which may not fall within the ambit of accessorial liability or criminal attempts at common law. It must be emphasised that we are discussing ‘prohibited’ or ‘controlled drugs’ in this chapter. Essentially these words refer to substances commonly thought of as ‘illegal’ drugs, including cannabis, heroin, amphetamines and ecstasy. Many other substances are lawfully available in some circumstances, yet controlled in others. They include prescription drugs such as morphine, valium and the benzodiazepines. These drugs have legitimate medical uses, but are regulated so as to prevent their abuse for non-medical purposes. Each jurisdiction regulates the use of substances with a recognised medical use through a poisons list or code. These lists generally mirror the Commonwealth Poisons Standard, which categorises substances into one of ten schedules depending on a range of factors, such as their potential harm or their potential for addiction or abuse. The state legislation then regulates a range of activities in relation to those substances (for example, the circumstances under which they can be supplied or sold, used, manufactured, or prescribed by a health professional).3 State legislation now also provides regimes regulating psychoactive substances (also known as ‘synthetic drugs’ or ‘legal highs’) that aim to produce effects similar to prohibited or controlled drugs, but use chemicals that are not directly listed as prohibited or controlled drugs in an attempt to avoid the operation of drug offence laws.4 Before discussing the substantive offences relating to controlled or prohibited drugs, it is important to examine generally the judicial interpretations of statutory drug offences through which mens rea has evolved.

THE MENTAL ELEMENT (MENS REA) OF DRUGS ­OFFENCES As emphasised in Chapter 2, one of the fundamental principles of the criminal law is that, generally, criminal offences contain both an actus reus and a mens rea. What happens, then, where a person accused of possessing prohibited drugs claims that they had no knowledge of the drugs found in their possession and therefore could not be said to have a guilty mind? The key points as to the mens rea requirements in drugs offences are: •• The prosecution must establish that the accused had the intention to possess, supply, cultivate, manufacture or import a prohibited substance. •• The intention of the accused can be established when: –– the accused has actual knowledge that the substance in their possession or that they are importing, etc. is a prohibited drug, or –– the accused believes there is a likelihood that the substance in their possession or that they are importing, etc. is a prohibited drug.

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Prior to the High Court decision in He Kaw Teh v The Queen (1985) 157 CLR 523, Australian courts generally considered drug offences to be offences of strict liability; that is, there was no requirement for the prosecution to prove the accused possessed any form of mens rea, but the defence of honest and reasonable mistake of fact was available. The crime was committed by the physical acts of importing or possessing a substance that was a prohibited drug and included exerting possession over an article that held, or a place that contained, a prohibited drug. 5

A CASE TO REMEMBER He Kaw Teh v The Queen (1985) 157 CLR 523 The appellant had been apprehended at Melbourne Airport after arriving from Kuala Lumpur with approximately 2.7 kilograms of heroin hidden in a false bottom of his suitcase. At trial, on charges of importing and possessing prohibited narcotic goods under the Customs Act 1901 (Cth), the judge directed the jury that the prosecution need not prove the accused had any specific state of mind, whether of intention, knowledge, motive or advertence. On appeal, the High Court handed down a significant and wide-ranging judgment on the importance of the mens rea element for crimes involving drugs and in relation to criminal offences generally. Importantly, in construing the words of the statute creating the relevant drugs offences, Gibbs CJ considered that, taking into account the serious nature of the offences and the significant punishments provided, it could not have been the intention of the legislature to make an innocent traveller who had had drugs secreted in their baggage by someone else liable to conviction, and questioned whether such a result would aid in enforcement of the provisions. His Honour also considered that the words ‘imported’ and ‘possession’ required knowledge on the part of the accused, in addition to physical acts. Because one could not be said to import or possess something without knowledge of its presence, Gibbs CJ held (at 536–37) that the offences required proof of a subjective state of mind related to the existence of the goods in question. Brennan J held (at 589) that the acts of both importing and possession required a mental element of intention and that the prosecution must prove that an accused had an intention to import and therefore ‘knew of the existence and nature, or the likely existence and nature’ of the goods in question. The majority of the court concurred in the result, but there were differing formulations regarding what specific degree of knowledge or intention was required; this was resolved in the later cases of Kural v The Queen (1987) 162 CLR 502 and Saad v The Queen (1987) 70 ALR 667.

In Kural and Saad, the High Court held that it is sufficient if the accused believed there was a likelihood, as in a ‘real or significant chance’, that the substance they were importing or had in their possession was a prohibited drug; this equates to a form of recklessness.6 It is important to note that the High Court indicated in both Kural and Saad that this knowledge or belief is not a separate element of the offence; it is a mechanism by which the mens rea of intention to possess or import may

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be inferred. In Kural, the court also held (at 504) that the existence of the requisite knowledge or belief may be inferred from ‘the doing of the proscribed act and the circumstances in which it was done’ by the accused. The judgment of Gibbs CJ in He Kaw Teh had indicated that ‘wilful blindness’ could be treated as equivalent to knowledge where an accused’s suspicions had been aroused, for example by being given a suspicious-looking package or noticing something suspicious about the appearance or weight of their own baggage and failing to act. In the subsequent case of Pereira v Director of Public Prosecutions (1988) 82 ALR 217, the High Court cautioned against such an approach and held that although actual knowledge could be inferred from a combination of suspicious circumstances and a failure to make inquiries it must be the only rational inference available and the tribunal of fact must still consider ‘knowledge’ as a matter to be proved beyond reasonable doubt. In contrast to the decisions in Kural and Saad, which held that knowledge was not a separate element of the offence, but could be used to infer the mental element of intent, the court in Pereira held that knowledge was an element of the drug offence. Overall, in reconciling these decisions, it is clear that knowledge (or awareness of likelihood) of what is possessed, imported, etc. will always need to be present, either because it is an element of the offence or because it is inescapably required as part of the proof of an intention to possess or import, etc. There may be occasional cases where an accused may have knowledge of a substance, but that knowledge alone does not demonstrate an intention to possess7 or import, etc. However, knowledge will always be required under either approach to the mens rea in drugs offences.

POSSESSION OF PROHIBITED DRUGS An important basic offence against the drugs legislation in each jurisdiction is ‘possession’ of a ‘prohibited’ or ‘controlled drug’.8 The South Australian and Victorian legislation contains inclusive definitions of ‘possession’9 while in New South Wales there is a deeming provision that specifies that certain actions will constitute possession.10 Accordingly, these definitions are not exhaustive and the common law must also be considered in relation to the ordinary meaning of ‘possession’. Possession is a concept relevant to several areas of law, including various criminal offences. A useful definition is found in Moors v Burke (1919) 26 CLR 265, where the High Court held (at 274): Possession means … simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it

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where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes … It does not include the case of a person who has put the property out of his present manual custody and deposited it in a place where any other person independently of him has an equal right and power of getting it, and so may prevent the first from ever getting custody of it in the future.

ACTUS REUS As to the actus reus of ‘possession’, an accused can be in possession of prohibited or controlled drugs by having either: •• ••

physical custody of the drugs (‘actual’ or ‘manual’ custody), or being in a situation where they can exclude others from the drugs and take manual custody when they wish (‘control’ or ‘de facto’ custody).

Obviously, when an accused is found with drugs on their person, they have actual custody of them. It is also sufficient if the drugs are found in a car that an accused is in control of or has access to (even if the car or the drugs do not belong to them), provided the accused knew of their presence.11 The alternative type of possession by de facto custody is ‘more extensive than physical custody … it is wide enough to include any case where the person has hidden the thing effectively so that he can take it into his physical custody when he wished and where others are unlikely to discover it except by accident’. 12 An example is provided by the case of R v Delon (1992) 29 NSWLR 29, where the accused was observed by police to secrete drugs in a hole before positioning himself on a log nearby. It was held that he was in possession of the drugs as his hiding and watching of the hiding spot indicated that he intended to retake physical control (or allow another to take physical possession with his permission) and to exclude others from the drugs who were unlikely to find the drugs except by accident.13 Despite the requirement for an accused to have actual or de facto custody there may be circumstances where an accused can be found to be in possession when, physically, the drugs are in the control of another. The definition in the Victorian legislation refers to drugs ‘used, enjoyed, or controlled’ by the accused or found on ‘any land or premises occupied’ by the accused.14 The South Australian and New South Wales definitions refer to an accused having ‘control over the disposition of the substance’ or of the substance being in the person’s ‘order or disposition’. Thus, drug dealers who give possession to couriers with instructions on how to deal with them may still, at law, be in possession of the drugs. In the Victorian case of R v Doan (2001) 3 VR 349, an accused was found to have joint possession of drugs located in a bag containing her clothing, which a co-accused was carrying towards her residence. There are limits, however, an example being that control or disposition terminates where another person swallows the drugs.15

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Because possession requires an element of exclusivity, problems can arise when drugs are found in circumstances where their specific owner could be one of a number of people, such as where drugs are found in a house shared by several people.

A CASE TO REMEMBER R v Filippetti (1978) 13 A Crim R 335 A police search of premises located a large amount of ‘buddha sticks’ (cannabis) concealed within a chair in the lounge room of premises occupied by the defendant. As five other people lived in the house, and all had access to the lounge room, the court held that there was insufficient evidence to prove that the drugs were in the exclusive control of the defendant.16

The requirement for exclusivity does not preclude an accused being convicted of possession if others ‘acting in concert’ with the accused also have access to the drugs and an accused is charged with having joint possession.17 For example, in Dib and Dib v R (1991) 52 A Crim R 64, heroin was found in a vase on top of a refrigerator in premises occupied by the two accused. They were subsequently convicted of joint possession despite the fact that their daughter also used the house and several other people were present when the heroin was discovered. On appeal, the court held that for the accused to be convicted it must be established that they had created a situation where they could both legally exclude others from the premises containing the drugs and take manual custody, and that their daughter did not have exclusive possession of the drugs. The court dismissed the appeal but did note that, in the absence of admissions by the accused, it would not have been possible to establish who was in possession. The possibility of joint or shared possession must be raised by the evidence18 and it is not sufficient to convict an accused of joint possession merely because they know of the presence of the drugs that are in the possession of another. The accused and their co-possessors must be ‘acting jointly’ in that the accused must (along with their co-possessors) have the right or intent to share in the drugs or exert control over them.19 A final aspect of the actus reus is that ‘as a matter of common sense and reality’, minute quantities of drugs cannot sustain a charge of ‘possession’. 20

MENS REA As discussed in the section at pp 215–17 relating to the mens rea of drug offences, there must be an intention to possess the prohibited drug, which requires that there be knowledge or a belief in the existence and nature of the prohibited drug possessed. This reasoning has been applied to drug possession cases under the state drug laws.21 Generally, it is sufficient if an accused knows of the existence of the drug and knew or believed it was an illegal drug,22 or was aware that there was

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a likelihood (a significant or real chance) that it was and persisted in their conduct. It does not have to be knowledge of, or belief as to, the existence of a specific prohibited drug23 or that the drug was identified as a prohibited or controlled drug in the relevant legislation.24 Under ss 33P(1) and (2) of the Controlled Substances Act 1984 (SA), the mens rea required for statutory offences involving controlled drugs in South Australia, including ‘possession’, is knowledge or recklessness as to the nature of a substance and not its identity as a specific controlled drug. At trial a judge must generally direct a jury that possession involves knowledge of what is possessed.25 In R v Cotterill (Unreported, CCA (NSW), 7 June 1993), however, it was held to be sufficient that a trial judge had only directed the jury as to whether the accused knew he had the goods in his possession, because his actions in throwing them away when he saw police sustained the inference that he knew they were prohibited drugs.26 In Kural and Saad, the High Court emphasised that an intention to possess will ordinarily be irresistible in cases where an accused has possession and knowledge of what they possess.27 When an accused has knowledge of the nature of a drug in their possession, even very slight acts can be a foundation for an inference of the intent to possess. Examples are where an accused knowingly claimed a package containing drugs at an airport and then quickly changed their mind and left before taking physical possession of the package,28 driving a car that an accused knew to contain drugs even though they did not claim ownership of the drugs 29 or simply being a passenger in a car that contained drugs.30

SUPPLY AND TRAFFICKING In accordance with the policy that those who deal in drugs or seek to profit from the drug trade should be subjected to heavier penalties than mere users, each jurisdiction has enacted offences relating to the trafficking, supply or sale of prohibited drugs.31 The New South Wales legislation provides an offence of ‘supply’ whereas offences of ‘trafficking’ are provided in South Australia and Victoria. The South Australian legislation contains separate offences of trafficking in controlled drugs, sale of controlled plants or a lesser offence of the supply of controlled drugs. In each jurisdiction the maximum penalties are increased based on the quantity of drug supplied or trafficked32 and where the drug has been supplied to children.33 It is difficult to succinctly note the differences between the offences of trafficking, selling and supplying. The definitions in each of the legislative provisions in the respective common law jurisdictions encompass a wide range of behaviours. They extend the concept to various forms of involvement, preparatory actions or taking part in any of the steps of a transaction involving drugs. You will need to refer to the specific definitions applicable in your jurisdiction, as set out in Table 9.1.

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TABLE 9.1 ‘Drug dealing’ concepts—legislative definitions in the common law jurisdictions CONCEPT

DRUG MISUSE AND TRAFFICKING ACT 1985 (NSW)

DRUGS, POISONS AND CONTROLLED SUBSTANCES ACT 1981 (VIC)

CONTROLLED ­SUBSTANCES ACT 1984 (SA)

Sell

s3

s 4—but does not apply to ‘trafficking’ offences (s 70(2))

s4

Supply

s3

s 4—but does not apply to ‘trafficking’ offences (s 70(2))

s4

Traffic/k

N/A

s 70(1)—in relation to a drug of dependence

s 4—traffic in a controlled drug

ACTUS REUS The definition of ‘supply’ in Drug Misuse and Trafficking Act 1985 (NSW) s 3 is not exhaustive; the term also retains its ordinary meaning of providing, furnishing or making available something that is sought.34 It is a concept that is broader than commercial transactions, such as selling drugs. It includes sharing drugs with others and the delivery of drugs.35 While ‘supply’ generally requires the physical movement of the drugs from one person to another, the broad statutory definition of ‘supply’ encompasses acts where no physical movement of the drugs has taken place. For example, in Dendic and Mazzeo v R (1987) 34 A Crim R 40 the two co-accused who undertook to provide an undercover police officer with drugs were found to have supplied because they had ‘offer[ed] to supply’; that conduct satisfied the broad statutory definition of supply even though there was no exchange of drugs before police intervened. Conversely there are some circumstances where physical movement of the drugs from one person to another is not supply. For example in R v Carey (1990) 20 NSWLR 292, an accused who had been given drugs to mind by her sister was found not guilty of being in possession for the purposes of supply, as the court held that returning drugs to their original owner is not a supply; they had simply been transferred into her custody for a period of time.36 Trafficking is a similarly broad concept, encompassing both the acts specified in the statutory definition and the meaning at common law.37 The elements of the offence of trafficking can be broadly categorised as follows: 1 the movement of drugs from source to user (actus reus—conduct) 2 in a commercial or trade context (actus reus—circumstance) 3 knowingly or consciously (mens rea).

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The first requirement does not mean that an accused has to literally receive the goods from the source and transport them to the purchaser; taking part in any step, even isolated from the other steps, of the movement of drugs will suffice. Thus it can be trafficking to deliver drugs, store drugs for sale, package, hide, prepare or guard the drugs. Many of these actions do not require literal movement of the drugs; it is the participation in the process that is decisive. Therefore, an accused who minds drugs can be guilty of trafficking even if they do not know who the supplier is or to whom the drugs are being supplied.38 The statutory definition of ‘trafficking’ in South Australia extends to a wide range of conduct involving ‘taking part’ in a step of the sale of the drugs. Acts of preparation for trafficking such as cultivation or manufacture39 are usually separate offences; however, in Victoria there is no specific ‘manufacturing’ offence and it falls within the definition of ‘trafficking’. Generally, it will not be an act of trafficking or supply to purchase drugs for personal use. In all jurisdictions, however, purchasing a drug with a view to on-selling some or all of it will constitute trafficking or supply, as the accused will then be in possession for supply/trafficking, even if no future sales are specifically planned. 40 One of the key areas in which trafficking offences may differ from supply is in the second requirement that an act of trafficking must have a commercial connotation 41 or take place within a ‘commercial setting’.42 Therefore, a gift of drugs does not constitute trafficking.43 It is not a requirement, however, that an accused receive money or reward for their actions in order to be convicted of a trafficking offence; it is sufficient if it can ‘fairly be inferred that someone involved is making a profit’. 44 Thus, in Falconer v Pederson [1974] VR 185 an accused who collected money from another person, used the money to purchase cannabis and delivered the cannabis back to that person was convicted of trafficking, even though he had received no reward. It was sufficient that the accused knew a purchase had taken place. In South Australia there are both ‘trafficking’ and ‘supply’ offences in relation to ‘controlled drugs’, so an accused may be charged with ‘supply’ if the circumstance of a ‘commercial setting’ is lacking.45

MENS REA The general provision in s 33P of the Controlled Subtances Act 1984 (SA) that the prosecution can prove the mens rea of drug offences by establishing recklessness as to the nature of what is being supplied applies to trafficking and supply offences. Otherwise, the common law principles from He Kaw Teh require that the accused must have a subjective intention to supply and therefore must know (or believe or be reckless as to) the nature of what is being supplied, not the specific prohibited drug. Where, however, the supply of a certain amount of a prohibited drug is charged, an accused must also have knowledge of the amount supplied.46

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ACTS ENCOMPASSED BY THE EXTENDED DEFINITIONS OF ‘SUPPLY’ AND ‘TRAFFIC’ There is a broad range of acts that come within the definition of ‘supply’ and ‘traffic’ in the common law jurisdictions. These can be summarised as follows: •• Steps to traffic or supply—any steps taken to supply or traffic drugs, for example sending or forwarding drugs, will satisfy the definition irrespective of whether they are received.47 •• Offer to sell or supply—once an offer that is intended to be taken seriously by the offeree has been made, that falls within the definitions of ‘supply’ and ‘traffic’. 48 Even if the accused intended to supply a legal substance under the guise that it is a prohibited drug,49 or if the accused simply intended to misappropriate the money and not supply anything,50 the offer is sufficient to constitute supply or trafficking. By s 40 of the Drug Misuse and Trafficking Act 1985 (NSW), a substance that is not a prohibited drug but is represented as such is deemed to be that prohibited drug.51 In the other jurisdictions, the common law suggests that if the offeror intends the offer to be taken seriously it is immaterial if they intend to provide the actual drug.52 •• Agreeing to sell or supply—in each jurisdiction selling is defined to include an agreement to sell, so this can constitute a trafficking or supply offence. As with an offer to supply, the accused does not have to intend or be in a position to honour the agreement.53 The offences of agreeing to supply, taking part in supply and conspiracy to supply can be difficult to distinguish. Generally, it has been held that to be convicted of the substantive offence of ‘supply’ by an agreement to supply, there must be a specific agreement for the sale of the drugs by the accused to another, as opposed to a mere ‘expression of common intention’ between two or more people to seek out possible customers with a view to supplying drugs to them.54 Cases where the alleged agreements involve preliminary inquiries, negotiations, seeking out business opportunities, or a mutual intention of on-sale to unknown others are more appropriately charged as conspiracies to supply. 55 •• Causing, encouraging, soliciting or inciting sale—although it has been held that it is not generally inciting, procuring or causing supply merely to request drugs for oneself,56 it is possible for an accused to be convicted of inciting or causing supply if there is some ‘extra incitement’. This may be so if the person from whom the drugs are requested is not willing and able to supply the drugs,57 or if drugs are purchased on behalf of others or for division between the purchaser and others, thus ‘causing’ supply to a third person.58 •• Suffering or permitting—it must be demonstrated that the accused (1) knew that an act of supply or sale was taking place or would take place (or that it was highly likely or probable); and (2) had the legal right or capacity to attempt to stop it.

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Thus in R v Jasper (2003) 139 A Crim R 329 the court held that it was arguable that a corrupt police officer was guilty of ‘supply’ as he had ‘suffered or permitted’ a drug dealer to continue operating (through taking bribes to turn a blind eye to the dealer’s activities and through warning him of relevant police operations). In New South Wales and South Australia, an accused can be convicted if they provide or allow premises to be used for supply or trafficking.59 Further, the Drug Misuse and Trafficking Act 1985 (NSW) contains specific provisions relating to ‘drug premises’60 that create offences of owning, occupying or even being present in premises when it can be proved they are being used for the supply, etc. of prohibited drugs. •• Possession for supply or trafficking—to sustain a charge of possession for supply, the prosecution must prove that the accused both possessed and intended to supply the drugs when apprehended.61 When a so-called ‘Carey defence’62 is raised, the judge must give clear directions to the jury by specifically explaining that holding drugs temporarily and intending to return them to their owner is not a ‘supply’.63 Holding drugs ‘for leverage’ is a type of exchange or barter and therefore falls within the statutory definition of sell,64 so it amounts to ‘supply’ or ‘trafficking’. There does not have to be proof of specific sales taking place or even of the planning of sales if trafficking or supply can be proved otherwise, for example through admissions of past acts of supply.65 In Jones v Stephens (Unreported, SC (NSW), 8 October 1985), an accused was found guilty of possession with intent to supply after admitting he purchased drugs that he would share with his friends ‘when they wanted’. •• Deemed supply—to overcome difficulties that may arise in proving intent to supply, each jurisdiction has also enacted ‘deeming’ provisions to assist in establishing intent to supply when an accused is found in possession of certain traffickable quantities of prohibited drugs.66 Possession must be established before the provisions have effect. Additionally, different quantities of drugs found in various locations may be added together, provided they are all in the possession of the accused.67 Section 29 of the Drug Misuse and Trafficking Act 1985 (NSW) provides that when an accused is in possession of an amount in excess of the ‘traffickable quantity’ they are deemed to have the drug in their possession for supply unless they can prove otherwise. Thus the onus of proof is shifted from the prosecution to the accused, although the standard of proof is on ‘the balance of probabilities’. An accused can attempt to discharge their burden of proof by presenting evidence that the drugs were for personal use and, depending on the quantity possessed, it may be evidence of previous heavy consumption and of the financial capacity to pay for such quantities. It will not be sufficient for an accused to establish that some of the drugs

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were for personal use; the defence must relate to all of the drugs.68 Alternatively, an accused may claim that they possessed the drugs for another reason, such as intending to throw them away.69 Similarly, the South Australian provision70 facilitates proof of a trafficking offence when an accused is in possession of the traffickable quantity of a controlled drug through a presumption that they were acting with the relevant intention for the purpose of selling the drug, unless there is proof by the accused to the contrary. In Victoria, the possession of a traffickable quantity of a drug of dependence is prima facie evidence of ‘trafficking’. The interpretation of Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(2) is that such possession does not deem it to be possessed for trafficking: it is evidence of trafficking that the jury may consider, in combination with other evidence, in determining if the accused had the requisite intention to traffick drugs.71 Once it is established that the traffickable quantity is possessed, however, the prosecution may only need ‘slight further evidence’ of trafficking to establish the offence.72 While s 73(2) does not reverse the onus of proof in relation to possession for the offence of trafficking, 73 the Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(a)–(b) allows the accused to establish that their possession was not for purposes related to trafficking as a mitigating circumstance relevant to sentence.74 This may be satisfied by proving the drug is for personal use, but personal use has to be the sole, not merely the primary, purpose.75

A CASE TO REMEMBER Momcilovic v The Queen (2011) 245 CLR 1 Ms Vera Momcilovic was convicted of trafficking in a drug of dependence under Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC after trial by jury. The prosecution alleged that Ms Momcilovic had ‘possession for sale’76 of methylamphetamine found in an apartment she owned and occupied; her partner, Mr Markovski also lived in the apartment. Ms Momcilovic denied any knowledge of the drugs; Mr Markovski pleaded guilty to charges relating to the drugs, and supported Ms Momcilovic’s claims that she was unaware of the existence of the drugs or his activities. At Ms Momcilovic’s trial, the jury was directed to the effect that the prosecution did not need to prove that Ms Momcilovic knew that the methylamphetamine was in the apartment in order to be found guilty of trafficking. This approach relied on the application of both Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 577 to establish (deemed) possession by an accused of drugs found on their premises and s 73(2) that such possession was prima facie evidence of trafficking. After an unsuccessful appeal to the Victorian Court of Appeal, 78 Ms Momcilovic pursued a further appeal to the High Court.79 The High Court held, by majority (French CJ, Gummow J, Hayne J, Crennan and Kiefel JJ), that s 5 did not apply to the offence of trafficking under s 71AC. Chief Justice French found (at 58) that:

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the application of s 5 to establish prima facie evidence of possession for sale [as a result of s 73(2)] constituting trafficking under s 71AC is anomalous and is not a purpose of the Act. As a matter of construction it should not be applied to that offence. The contrary view has the result that occupation of premises, upon which there is a quantity of drugs of or exceeding the traffickable quantity, would be prima facie evidence of trafficking in those drugs in circumstances in which the burden of disproving knowledge of the presence of the drugs on the premises would rest upon the accused.80

Although Bell J concluded that s 5 could be engaged in a prosecution for trafficking (at 250–2), her Honour joined the majority orders on the basis that the trial judge had misdirected the jury in relation to proof of the mens rea of trafficking (at 253–5). Justice Heydon also found that s 5 applied to offences against s 71AC as a matter of statutory interpretation (at 185–6), and dissented on other grounds.

Table 9.2 sets out examples of traffickable quantities of certain drugs in each jurisdiction. All jurisdictions provide that this quantity may be established as a ‘mixture’ of the drug with other substances, rather than the drug in its pure form. 81 TABLE 9.2 Traffickable quantities of common prohibited drugs or controlled substances in the common law jurisdictions TYPE OF ­PROHIBITED DRUG, ­CONTROLLED SUBSTANCE

DRUG ­MISUSE AND ­TRAFFICKING ACT 1985 (NSW) SCH 1

DRUGS, POISONS AND CONTROLLED SUBSTANCES ACT 1981 (VIC) SCH 11

CONTROLLED SUBSTANCES (CONTROLLED DRUGS, PRECURSORS AND PLANTS) ­REGULATIONS 2014 (SA) SCH 1

Amphetamine

3.0 grams

3.0 grams

2.0 grams

Methylamphetamine

3.0 grams

3.0 grams

2.0 grams

Cannabis leaf

300 grams

250 grams or ten plants

250 grams (any dried cannabis plant material not including resin or oil)

Cocaine

3.0 grams

3.0 grams

2.0 grams

Heroin

3.0 grams

3.0 grams

2.0 grams

MDMA (ecstasy)

3.0 grams (or 15 dosage units)

3.0 grams

2.0 grams

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••

Taking part in supply/trafficking—both the South Australian and New South Wales Acts provide that knowingly taking part in supply (NSW)82 or the sale of a controlled drug (South Australia)83 will constitute a supply or trafficking offence. In New South Wales, taking part in any of the activities included in the definition of ‘supply’ can constitute the offence.84 In South Australia, however, proof of a ‘commercial setting’ is required,85 and the offence has a limited reach compared to the New South Wales provision. Taking part in a sale can encompass both direct involvement and acts remote in place or time from the principal act (for example, providing premises or finance).86 In R v Zaiter [2005] NSWCCA 61, an accused was charged with ‘knowingly taking part in supply’ of cocaine after acting as a ‘middle man’, arranging and negotiating prices between a buyer and a seller on the telephone. The court held that there was no bar to him being convicted of ‘knowingly taking part’, notwithstanding that his actions could also have been found to be ‘supply’. Other conduct that has been held to constitute involvement or taking part has included ‘showing off’ merchandise, counting money and accompanying a seller during transactions,87 introducing a prospective buyer and seller, or arranging a meeting (even if the sale does not take place). 88

CULTIVATION AND MANUFACTURE OF DRUGS CULTIVATION Each jurisdiction has specific provisions prohibiting the cultivation of prohibited plants, typically cannabis. In each jurisdiction the offences attract differing penalties based on the numbers of plants grown, whether they are grown for the purpose of sale or trafficking and, in some jurisdictions, how they are grown.89 The definition of ‘cultivate’90 in each jurisdiction encompasses a wide range of conduct. Further, in its ordinary meaning at common law, ‘cultivate’ has been applied broadly to actions such as preparing soil, sowing, fertilising, tending and caring for the plants, and harvesting the crop.91 Caring for or watering seeds may also amount to cultivation.92 The time when acts cease to be cultivation will be a question of degree.93 For example, a later storage of plants at a different location is not cultivation as it has taken place after harvesting has been completed.94 Transporting harvested plants95 has also been held not to constitute cultivation, though such acts could potentially amount to possession or supply/trafficking. If the land on which the plants are cultivated is owned or occupied by an individual, this will not be decisive, without more, of that individual taking part in the cultivation. The prosecution must still prove a link between the accused and the acts amounting to cultivation. The discussion of the mental element in drugs offences at pp 215–17 is relevant to ‘cultivation’ offences. Again Controlled Substances Act 1984 (SA) s 33P applies as the requisite mental standard in this jurisdiction. Generally, proof of knowledge by

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the accused that a ‘prohibited’ or ‘controlled’ plant was involved will suffice. When a more particular offence is charged (for example, cultivating a certain quantity of plants or growing plants for a commercial purpose), the prosecution will have to prove the more specific intent to carry out the acts constituting the offence.96 In R v CWW (1993) 32 NSWLR 348, it was held that an accused could be convicted of cultivating a commercial quantity of cannabis plants as he was aware of the likelihood that the amount of the crop exceeded the commercial quantity, even if he had not specifically intended to cultivate that amount. It is possible for an accused to be charged with cultivating a specific quantity of plants by adding together the number of plants grown at several different sites if the prosecution can prove the accused cultivated the plants at each site.97 Where an accused is charged with cultivating a particular quantity of plants, ‘it is not necessary for the Crown to prove that the appellant actually harvested … or actually handled [the particular quantity of] plants. It is sufficient if the Crown proves beyond reasonable doubt that the appellant carried out an act involved in the harvesting of a crop which comprised in excess of [the particular quantity of] plants’.98 In both New South Wales and Victoria, there is a specific defence available to a cultivation charge enabling the accused to bring evidence that they did not know or suspect and could not reasonably be expected to have known or suspected that the plant involved was a narcotic or prohibited plant.99 The accused bears the onus, on the balance of probabilities, of establishing this defence. In both South Australia and New South Wales, it will be sufficient if an accused takes part in cultivation. In New South Wales, an accused must do so ‘knowingly’, whereas the general mental standard applies in South Australia with the effect that the accused must know or be reckless with regard to the substance being a controlled substance. These provisions will extend to persons with no direct involvement in the cultivation (for example, those providing finance for the purchase of materials) but whose actions are part of a systematic, planned or prearranged enterprise.100 In Victoria, more remote involvement that does not constitute cultivation or an attempt to do so would be considered for prosecution under the ‘conspiracy’ or ‘aiding and abetting’ provisions.101 Due to concerns in recent years about hydroponically grown cannabis being more dangerous, specific provisions differentiating hydroponically grown cannabis from cannabis cultivated by conventional means have been enacted in New South Wales102 and South Australia.103 Therefore, if an accused cultivates cannabis by indoor means for a commercial purpose, they can be liable to heavier penalties than an outdoor grower despite having significantly fewer plants (particularly if children are exposed to the cultivation).104 In South Australia, there are also offences of possessing proscribed equipment, which includes a wide range of indoor growing equipment, provided it is used, may have been used or (in relation

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to some pieces of equipment) is capable of being used for hydroponic cannabis cultivation,105 and possessing documents containing instructions for the cultivation of controlled plants.106

MANUFACTURE Each jurisdiction also has an offence of ‘manufacturing’ prohibited or controlled drugs with maximum penalties on a graduated scale dependent on the quantity manufactured.107 As noted previously, ‘manufacturing a drug of dependence’ is included within the definition of ‘trafficking’ in Victoria.108 The definitions of ‘manufacture’ in each jurisdiction109 contain common elements requiring the extracting and refining of a prohibited drug. Courts will also apply the ordinary meaning, such as ‘manufacturing a different thing from that out of which it is made’ or ‘a systematic series of actions or operations directed to some end’. 110 The offence extends to ‘knowingly taking part in manufacture’ in New South Wales or taking a step in the process of manufacture of a controlled drug in South Australia. More remote involvement in Victoria would again have to be prosecuted under the ‘aiding and abetting’ or ‘conspiracy’ provisions.111 Offences of being involved in manufacture should also be distinguished from preparatory actions that may still amount to an attempt or conspiracy. In Thomas (1993) 67 A Crim R 308, an accused was convicted of ‘manufacture’ after having been found with a laboratory and a quantity of a substance known as P2P, a raw material often used in the manufacture of methylamphetamine. The accused argued that they had not taken part in a step of manufacture, but merely a preparatory act. The court rejected this argument, holding that manufacture can commence with materials in various states of refinement and where manufacture begins and ends will be a question of fact in each individual case. The mere fact that a manufacture has been interrupted at a particular stage will not be fatal to a prosecution case that a person was involved in a step in the process. There are limits in this regard, however, as illustrated in the case of R v BD (2001) 122 A Crim R 28. In this case an accused was found to have nearly 30,000 cold and flu tablets, some other chemicals and chemistry equipment in his car. The court held that the accused could not properly be convicted of knowingly taking part in a step of manufacture, as the acquisition and transport of equipment and material were merely steps preparatory to manufacture. Similarly, in Spicer (2003) 139 A Crim R 206 and Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392 it was held that couriering equipment and substances that were partly refined was not, without more, a step in the process of manufacture. Ultimately, however, it seems that the question of whether particular uses of equipment or materials amount to a step in the process of manufacture will depend on all the circumstances of the case.112

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The earlier discussion of the mens rea in drugs offences is once again relevant to ‘manufacture’ offences. That is, the common law principles outlined at pp 215–17 requiring proof of an intent to manufacture, with the requisite knowledge or belief in the nature of the prohibited drug, apply in New South Wales and Victoria. Similarly, Controlled Substances Act 1984 (SA) s 33P provides the requisite mental standard in relation to the identity of the controlled substance in South Australia. In New South Wales and Victoria, offences involving manufacture/trafficking of a particular quantity of prohibited drug also require proof of a specific intent in relation to that quantity. 113 However, the position appears to differ in South Australia, where the Court of Criminal Appeal held in R v Scarpantoni (2013) 118 SASR 131 that specific intent to manufacture a particular quantity of controlled drug is not an essential element of the s 33(1) offence of manufacturing a large commercial quantity of controlled drug. 114 To remedy the limitation on the reach of the ‘manufacture’ offence, each jurisdiction has enacted specific provisions criminalising the possession or sale of ‘precursors’ and equipment or instructions that can be used in the manufacture of prohibited drugs.115 Because many of the proscribed precursors or pieces of equipment also have lawful uses, there are requirements, depending on the particular provision and jurisdiction, that an accused have intention to use the substances or equipment for the manufacture of prohibited drugs (or that another will use them for such a purpose), be in possession of a certain amount of the precursor, or not have a lawful reason or excuse for the possession of the precursors.

COMMONWEALTH LEGISLATION It is important to understand that there are Commonwealth laws operating concurrently with the state laws in the control of drug trafficking. As the Commonwealth has limited legislative powers under s 51 of the Constitution, the key legislative provisions in this area relate to the importation and exportation of border-controlled drugs under Criminal Code Act 1995 (Cth) Chapter 9, Part 9.1 Division 307.116 There are provisions in the Commonwealth Criminal Code dealing with a comprehensive range of domestic drug offences, including possession, selling, cultivating and manufacturing. Although there is potential for overlap with the state offences we have considered above, the provisions are intended to operate concurrently117 and our consideration of Commonwealth drugs offences will be confined to those with an international element. Substances regulated under Criminal Code Act 1995 (Cth) Part 9.1 are separated into ‘controlled’ drugs, plants or precursors and ‘border-controlled’ drugs, plants or precursors. Provision is made for certain weights of a ‘border-controlled’ plant or drug to be classified as less than ‘marketable quantity’, ‘marketable quantity’ or ‘commercial quantity’. Sections 301.1, 301.4 and 301.9 of the

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Criminal Code Act 1995 (Cth) also clarify that drug analogues (substances with a similar chemical structure or that produce a similar pharmacological effect to one of the listed drugs) fall within the definitions of controlled or border-controlled drugs. Unlike some state laws, the provisions in the Criminal Code Act 1995 (Cth) relate to the pure form of controlled drugs, not mixtures, so the prosecution must prove the amount of the pure form of the substance as opposed to the weight of the mixture. 118

IMPORT AND EXPORT—STATUTORY PROVISIONS Importing and exporting offences are found in Div 307 of Part 9.1, Chapter 9 of the Criminal Code Act 1995 (Cth). Penalties and, in some instances, the availability of statutory defences differ based on whether the quantity of the drug or plant is below marketable quantity, marketable quantity or commercial quantity. The range of border controlled drugs, plants and precursors, and the specific division into marketable and commercial quantities are set out in Criminal Code Regulations 2002 (Cth) regs 5D–5F, Sch 4. ‘Import’ and ‘export’ are defined, respectively, in s 300.2 of the Criminal Code Act 1995 (Cth). ‘Export’ includes ‘take from Australia’, while the more extensive definition of ‘import’ provides that: “import”, in relation to a substance, means import the substance into Australia and includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation.

This expansive definition of ‘import’ was introduced by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) after the New South Wales Court of Criminal Appeal in R v Campbell (2008) 73 NSWLR 272 held that the previous definition119 included only a relatively confined range of conduct and had unexpectedly narrowed the reach of the importing offences. The Explanatory Memorandum accompanying the 2010 amending legislation stated that the purpose of the amendment was to ‘capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs’, and identified a range of behaviours that might amount to dealings in connection with importation, for example: (a) (b) (c) (d) (e) (f) (g) (h)

packaging the goods for importation into Australia transporting the goods into Australia recovering the imported goods after landing in Australia making the imported goods available to another person clearing the imported goods transferring the imported goods into storage unpacking the imported goods arranging for payment of those involved in the importation process.120

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A range of cases has further explained aspects of the definition of ‘import’ in Criminal Code Act 1995 (Cth) s 300.2. In R v Campbell (2008) 73 NSWLR 272, Spigelman CJ (at 294) concluded that para (a) of the definition of ‘import’ required that substances be brought into Australia from abroad and ‘be delivered at a point which, in the words of Isaacs J in Wilson v Chambers,121 would “result in the goods remaining in Australia”’.122 In R v Toe (2010) 106 SASR 203, Bleby J (at 224) noted that a person who arranged or caused goods to be brought into Australia (by a shipping company or airline, for example) had imported those goods. White J added (at 262) that surveillance and investigation of substances by customs authorities or police would not end an importation. In R v Tranter (2013) 116 SASR 452, White J observed (at 458) that ‘importation’ in para (b) of the definition of ‘import’ was intended to refer to a process or venture not limited to the moment of import. Peek J also observed (at 478) that the phrase ‘in connection with’ could include both preand post-importation activities.123 In El-Haddad v R (2015) 88 NSWLR 93 Leeming JA held (at 121–2) that ‘dealing’ included both physical processes (for example, transporting goods) and legal processes (for example, selling goods) relating to substances brought into Australia. The conduct of Mr El-Haddad in contacting a shipping company to change details of the consignee of a shipping container involved an assertion of ownership that was found to be a dealing with drugs in the shipping container in connection with their importation. These decisions show that ‘import’ in Criminal Code Act 1995 (Cth) s 300.2 now largely covers the same ground as ‘importation’ in the Customs Act 1901 (Cth) offences that predated Criminal Code Act 1995 (Cth) Div 307. For example, accessing drugs secreted in a shipping container and subsequently moved to a disused factory near to the airport approximately two weeks after the container had arrived in Sydney might well amount to a dealing with drugs in connection with their importation.124 The mental or fault elements of importing offences are now determined with reference to the provisions of the Criminal Code Act 1995 (Cth).125 The Div 307 offences typically require proof of both an intent to import126 and recklessness as to the nature of the substance to which the offending relates.127 These requirements reflect the traditional approach to the mens rea of drugs offences addressed at the beginning of this chapter (pp 215–17).128 It also seems that proof of an intention to import may be facilitated by establishing that an accused was reckless with regard to the nature of the goods imported, using the same reasoning processes applicable at common law.129 Recklessness as to the nature of the substance is to be determined by applying the definition of ‘recklessness’ in Criminal Code (Cth) s 5.4(1). 130 In relation to the importation of commercial or marketable quantities of a border controlled drug, the element of the quantity imported or exported is one of absolute liability and it is not necessary to prove an accused’s knowledge of what quantity is being imported or exported.131

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An accused charged with an importation offence in relation to any quantity of border-controlled drugs is deemed to intend them to be used for commercial supply.132 However, an accused has a partial defence in relation to marketable quantities or less if they can prove a lack of intent to sell the goods. 133 If the defence is successful, the accused is still liable for an importation offence 134 but faces a substantially lesser penalty.

Important references For more extensive coverage of the substantive law relating to drugs offences, the following textbooks should be consulted by students: Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 14 ‘Drug Offences’ 871–940. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia ­Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 12 ‘Drugs Offences’ 1049–1135. Peter Zahra and Courtney Young, Zahra and Arden’s Drug Law in New South Wales (3rd edn, 2014).

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 Succinctly describe the elements that must be proved by the prosecution when an accused is charged with the ‘possession’ of a controlled or prohibited drug in your jurisdiction. 2 Distinguish the offence of ‘supply’ in New South Wales from the offences of ‘trafficking’ in Victoria and South Australia. Outline the range of acts that can amount to the ‘supply’ or ‘trafficking’ of prohibited drugs. 3 ‘Importation’ encompasses a process that ‘extends on both sides of the actual act of importing’ (Forbes v Traders’ Finance Corporation Ltd (1971) 126 CLR 429 per Barwick CJ at 432). Explain what conduct is included within the concept of ‘import’ for the purposes of the Criminal Code Act 1995 (Cth).

Problem questions SCENARIO 1 Paul and Brett are recent university graduates who held a party to celebrate their graduation. The following day while cleaning up after the party, Paul noticed a small plastic bag containing two pills on the kitchen counter. Paul has tried cannabis on several occasions but has no interest in trying ‘harder’ drugs. He asked Brett what he should do with the pills. Brett replied, ‘I’m not into that sort of thing; do what you want with them’. Paul left the pills in the kitchen. Several days later, upon realising their landlord was coming to do an inspection, Paul moved the pills into a kitchen cupboard. Unfortunately, the landlord opened the cupboard, saw the pills and called the police. Paul is charged with possession of the pills. Brett has gone overseas on holiday. Discuss the criminal liability of Brett and Paul. SCENARIO 2 Andrew is a young law student who is quite close to his eccentric grandfather, Ray, who lives alone on a rural property. One night Ray gave Andrew a small bag containing green vegetable matter and said, ‘You should smoke a bit of this while you are young. Don’t worry, pot is great fun and it’s harmless; I’ve smoked it all my life. But that is just for you; don’t get involved in selling the stuff’. Unsure of whether he wanted to try cannabis, Andrew took the bag home. A week later he told his friend Michael that he had ‘come into some weed but I don’t know if I want to try it’. Michael replied, ‘Awesome, bring it to Sarah’s party on Friday night. We can all try it then’. On Friday night Andrew took the cannabis to Sarah’s house and shared it with a few friends. When the police arrived in response to a noise complaint, they caught one of Andrew’s friends smoking the cannabis and he told them that the cannabis was provided by Andrew. Assuming the amount Andrew was given was less than the traffickable quantity, discuss the potential liability of Ray, Andrew, Michael and Sarah in relation to supply or trafficking offences. SCENARIO 3 Garry is an unemployed labourer who is growing increasingly desperate for work. One night he met Jim at the local pub and after talking for a while Jim said that he was planning

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to plant a large number of olive trees. He also said he might have some labouring work for Garry on his farm and gave him directions to the farm. When Garry arrived the next day he found that Jim had covered an isolated paddock with camouflage netting and sealed it off with an electric fence. When Garry asked Jim why he had the netting and the fence, Jim laughed and said, ‘It’s no big deal; that just keeps the birds off and the cows away. Look, sorry mate, but I’m not ready to start yet, my tractor’s getting repaired. Come back in a week or two’. A week later Garry called Jim and asked when he could start work. Jim replied, ‘Well, I’m going away for a week or so, but I will drop the keys to the tractor at your house and you can start preparing the soil when you want’. The next day Garry starts work and is preparing the soil with the tractor when police arrive and arrest him. They tell Garry that Jim has been arrested and had ‘hundreds of cannabis seeds and cuttings watered and ready to go’ and that Garry has ‘a lot of explaining to do or he too will face very serious charges’. Discuss Garry and Jim’s criminal liability, if any, in relation to cultivation of cannabis. SCENARIO 4 Roy was arrested by police after his car was searched during a random breath test. While conducting the breath test, Constable Spicer noticed an unusual smell coming from the rear of the car. Roy complied with Constable Spicer’s request that he open the car boot; Constable Spicer found six empty large glass containers packaged safely inside the boot, and observed what he thought were scorch marks on the bottom of the containers. A carefully sealed glass jar containing approximately 185 millilitres of hypophosphorous acid was also located in the car boot. Roy told police that he had ‘never seen the items before’ and was stunned that they were in the boot of his car. A forensic chemist is available to give expert evidence that the heating of substances containing ephedrine or ­pseudoephedrine and later reaction with hypophosphorous acid is a method of ­manufacturing amphetamine favoured by Australian criminal gangs. Discuss Roy’s criminal liability for the manufacture of prohibited drugs and related offences. SCENARIO 5 Nadine has recently been on a backpacking holiday in South-east Asia. Upon her arrival home in Australia, the sniffer dogs at Melbourne Airport are attracted to Nadine’s backpack and customs officers require Nadine to open it for inspection. A key is required to open the bottom compartment of the backpack and Nadine produces the key from her pocket. Inside this compartment, the customs officers find a piece of brightly coloured cloth rolled tightly and sealed with packing tape. The cloth is opened and there are several ziplock bags containing white powder. The total weight of the bags is 278 grams and the powder is later analysed and found to contain heroin. Nadine denies any knowledge of the cloth and bags containing the white powder, although she states that she had packed her backpack before leaving Thailand. Discuss Nadine’s criminal liability for importing and/or possessing border controlled drugs under the Criminal Code Act 1995 (Cth). For suggested solutions to problem questions, please visit .

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Notes 1 See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 1049–79. 2 See, for example, Momcilovic v The Queen (2011) 245 CLR 1. 3 See Poisons and Therapeutic Goods Act 1966 (NSW), Controlled Substances Act 1984 (SA), which divides substances into categories of poisons, prescription drugs, drugs of dependence and controlled drugs through schedules found in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), Controlled Substances (Poisons) Regulations 2011 (SA) and Drugs, Poisons and Controlled Substances Act 1981 (Vic), which also regulates poisons and drugs of dependence in a similar way to the South Australian legislation. 4 Drug Misuse and Trafficking Act 1985 (NSW) ss 36ZD–36ZG; Controlled Substances Act 1984 (SA) ss 33LC–33LF. A number of synthetic cannabinoids are prescribed as drugs of dependence for the purposes of the Drugs, Poisons and Controlled ­Substances Act 1981 (Vic) by the Drugs, Poisons and Controlled Substances (Drugs of ­Dependence—Synthetic Cannabinoids and Other Substances) Regulations 2015 (Vic). 5 See Bush (1975) 5 ALR 387 and Rawcliffe [1977] 1 NSWLR 219. 6 Which, as you will see later, has been adopted as the standard for the mental element in drugs offences under South Australian and Commonwealth legislation. 7 This is illustrated in the case of R v Solway (1984) 11 A Crim R 449, considered further below. 8 Drug Misuse and Trafficking Act 1985 (NSW) s 10; Controlled Substances Act 1984 (SA) s 33L; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73 (drug of dependence). 9 Controlled Substances Act 1984 (SA) s 4 and Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5. 10 Drug Misuse and Trafficking Act 1985 (NSW) s 7. 11 See R v Maio [1989] VR 281 and Bourne v Samuels (1979) 21 SASR 591; compare R v Amanatidis (2001) 125 A Crim R 89. 12 Williams v Douglas (1949) 78 CLR 521, 526–7. 13 Also, see R v Van Swol [1975] VR 61, but compare Lai v R [1990] WAR 151, where drugs found in the bathroom of a restaurant, which was accessible by both staff and customers, could not, without more, be said to be in the possession of a restaurant employee. 14 See Momcilovic v The Queen (2011) 245 CLR 1, 52–5 (French CJ); 97 (Gummow J); 241–4 (Bell J). 15 Buck v R [1983] WAR 372. 16 Also, see R v Anderson (Unreported, CCA (NSW), 15 December 1983). 17 Joint possession is specifically encompassed by the definition of ‘possession’ in Drug Misuse and Trafficking Act 1985 (NSW) s 7 and Controlled Substances Act 1984 (SA) s 4. 18 R v Wan (2003) 140 A Crim R 513. 19 Searle [1971] Crim LR 592; see also Lee v The Queen (2013) 232 A Crim R 337, 397 [267] (Beech-Jones J). 20 Williams v The Queen (1978) 140 CLR 591, 598; R v Bourke (1993) 67 A Crim R 518. See also Paul v Collins Jnr [2003] WASCA 238.

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21 Dib and Dib (1991) 52 A Crim R 64; Greatorex (1994) 74 A Crim R 496; Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299. 22 R v Baird (1985) 3 NSWLR 331. 23 See Dunn v R (1988) 32 A Crim R 203, where an accused was convicted of possessing cocaine, even though he thought the substance in his possession was amphetamines. See also Weng v The Queen (2013) 279 FLR 119 on this issue in the context of Criminal Code (Cth) s 307.6. 24 Sgarlata v Western Australia (2015) 49 WAR 176. 25 R v Popa (1991) 53 A Crim R 102; Frazer v R (2002) 128 A Crim R 89. 26 Also, see R v Kady (Unreported, CCA (NSW), 18 June 1993). 27 Kural at 666–667, Saad at 504–5. 28 R v Warneminde [1978] Qd R 371. 29 Davis v R (1990) 5 WAR 269. 30 Alliston v The Queen (2011) 217 A Crim R 323. 31 Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 25A; Drugs, Poisons and ­Controlled Substances Act 1981 (Vic) ss 71–71A; Controlled Substances Act 1984 (SA) ss 32, 33I. 32 Drug Misuse and Trafficking Act 1985 (NSW) ss 30–33AA; Drugs, Poisons and ­Controlled Substances Act 1981 (Vic) ss 71, 71AA, 71AC; Controlled Substances Act 1984 (SA) ss 32, 33C. 33 Drug Misuse and Trafficking Act 1985 (NSW) ss 23A, 33AA, 33AC–33AD; Drugs, ­Poisons and Controlled Substances Act 1981 (Vic) ss 71AB, 71B; Controlled ­Substances Act 1984 (SA) ss 33E–33H. 34 See Coles [1984] 1 NSWLR 726 and R v Carey (1990) 20 NSWLR 292, 294–7. 35 R v Trudgeon (1988) 39 A Crim R 252 per Gleeson CJ at 254. 36 In South Australia, compare the decision in R v Urbanski (2010) 108 SASR 369 where the South Australian Court of Criminal Appeal did not follow the decision in Carey. 37 See particularly Falconer v Pederson [1974] VR 185, 188. 38 R v Morton (1986) 42 SASR 571. 39 Giretti v R (1986) 24 A Crim R 112; R v Holman [1982] VR 471. 40 Questions of Law Reserved on Acquittal (No 1/1996) (1997) 68 SASR 117; Reardon v Baker [1987] VR 887. 41 Sassine v R (1985) 18 A Crim R 178. 42 R v Holman [1982] VR 471 per Lush J at 475. 43 Matthews v Towers [1922] VLR 476. 44 R v Holman [1982] VR 471 per Lush J at 475. 45 See, for example, R v Urbanski (2010) 108 SASR 369. 46 R v CWW (1993) 32 NSWLR 348 per Smart J; Lau (1998) 105 A Crim R 167; ­Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299; R v ­McCulloch (2009) 21 VR 340; Nguyen v R [2015] NSWCCA 78. In the South ­Australian context, see R v Parisi (2014) 119 SASR 277. 47 Pinkstone v R (2004) 219 CLR 444. 48 Dendic and Mazzeo (1987) 34 A Crim R 40; Swan (2003) 140 A Crim R 243; Aoun v R [2011] NSWCCA 284, [43]–[48] (Johnson J). 49 Dendic and Mazzeo (1987) 34 A Crim R 40; Haggard v Mason [1976] 1 All ER 337. 50 R v Pierce [1996] 2 VR 215; Swan (2003) 140 A Crim R 243; Yaghi (2002) 133 A Crim R 490. 51 See Swan (2003) 140 A Crim R 243.

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52 Gauci v Driscoll [1985] VR 428. 53 Addison (1993) 70 A Crim R 213, 217. 54 R v Chow (1987) 11 NSWLR 561; R v Tannous (1989) 64 ALJR 141; R v Carusi (1989) 17 NSWLR 516. 55 See p 253ff for a detailed consideration of the law relating to ‘conspiracy’ offences. 56 Castle v Olen (1985) 3 NSWLR 26. 57 Eade (2002) 131 A Crim R 390. 58 R v Fisher (Unreported, SC (NSW), 17 February 1989). 59 Drug Misuse and Trafficking Act 1985 (NSW) s 6(c); see, for example, R v Ruiz-Avila (2003) 142 A Crim R 459. See also R v Lonie and Groom [1999] NSWCCA 319 and R v Sheen (2007) 170 A Crim R 533 in relation to the concepts of ‘suffering’ and ­‘permitting’ in the Drug Misuse and Trafficking Act 1985 (NSW). 60 Drug Misuse and Trafficking Act 1985 (NSW) ss 36TA–36ZC. 61 Jones v Stephens (Unreported, SC (NSW), 8 October 1985); R v Carey (1990) 20 NSWLR 292; Alliston v The Queen (2011) 217 A Crim R 323. 62 That is, the accused claims the drugs are only being held temporarily for the owner, to whom it is intended they will be returned—see p 221 for reference to this case. See R v Urbanski (2010) 108 SASR 369 where R v Carey (1990) 20 NSWLR 292 was not followed in the South Australian context. 63 R v Frazer (2002) 128 A Crim R 89; Alliston v The Queen (2011) 217 A Crim R 323. There may, however, be scope for convicting the accused of being an ‘accessory to supply’ or of simple ‘possession’, depending on all the circumstances. 64 R v Asim (1997) 92 A Crim R 97. 65 Reardon v Baker [1987] VR 887. 66 Controlled Substances Act 1984 (SA) s 32(5); Drugs, Poisons and Controlled ­Substances Act 1981 (Vic) s 73(2); Drug Misuse and Trafficking Act 1985 (NSW) s 29. 67 R v Wright (Unreported, CCA (NSW), 18 July 1986). 68 Mac v R [2014] NSWCCA 24. 69 Orban (Unreported, CCA (NSW), 5 July 1984). 70 Controlled Substances Act 1984 (SA) s 32(5); see also R v Nguyen (2010) 108 SASR 66. 71 R v Clarke and Johnstone [1986] VR 643, 659; R v Tran [2007] VSCA 19. 72 Sassine v R (1985) 18 A Crim R 178. 73 See R v Clarke and Johnston [1986] VR 643, 659; Medici v R (1989) 40 A Crim R 413; and Momcilovic v The Queen (2011) 245 CLR 1, 98 (Gummow J). 74 R v Wyllie [1989] VR 21. 75 R v Doble [2007] VSCA 47. 76 The compound expression ‘possession for sale’ is one component of the statutory definition of ‘traffick’ in Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70(1). 77 See discussion of Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5 at pp 224–5. 78 R v Momcilovic (2010) 25 VR 436. 79 In addition to the interpretation of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the High Court engaged with several constitutional questions r­elating to the validity and operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the interaction of the Drugs, Poisons and Controlled ­Substances Act 1981 (Vic) and the Criminal Code 1995 (Cth) Part 9.1 (the Commonwealth legislation is addressed briefly at pp 230–31).

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80 The judgments of Gummow J (at 97–9) and Crennan and Kiefel JJ (at 230) also ­highlight important aspects of the majority reasoning. 81 See Drug Misuse and Trafficking Act 1985 (NSW) s 4 (admixtures); Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70 (traffickable quantity); Controlled ­Substances Act 1984 (SA) s 33OA and Controlled Substances (Controlled Drugs, Plants and Precursors) Regulations 2014 (SA) reg 6(8). See also R v R2 (1992) 19 NSWLR 513; R v Parisi (2014) 119 SASR 277, 291 (Peek J). 82 See Drug Misuse and Trafficking Act 1985 (NSW) s 6 for a definition of the phrase ‘take part in’. 83 Controlled Substances Act 1984 (SA) s 4 – one alternative of the definition of ‘traffic’ means ‘take part in the process of sale of the drug’. 84 Derbas (1993) 66 A Crim R 327; Zaiter [2005] NSWCCA 61. 85 There is no specific offence of taking part in ‘supply’ in South Australia; rather, accessorial liability would need to be considered (see pp 265–9). 86 Deng (1996) 91 A Crim R 80; DPP Reference No 2 of 1995 (1995) 65 SASR 508. 87 R v Karam (1995) 83 A Crim R 416. 88 DPP Reference No 2 of 1995 (1995) 65 SASR 508; Questions of Law Reserved on Acquittal (No 1/1996) (1997) 68 SASR 117. 89 Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 72–72B; Drug Misuse and Trafficking Act 1985 (NSW) ss 23, 32–33; Controlled Substances Act 1984 (SA) ss 33B, 33K. 90 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70(1); Drug Misuse and Trafficking Act 1985 (NSW) s 3; Controlled Substances Act 1984 (SA) s 4. 91 R v Giorgi and Romeo (1981) 7 A Crim R 305. See also Grozdanov v The Queen (2012) 34 VR 426 where maintaining a hydroponic system was regarded as cultivation. 92 R v Stratford & McDonald [1985] 1 Qd R 361; Eager v Smith (1988) 38 A Crim R 272. 93 See, for example, Buiks v Western Australia (2008) 188 A Crim R 362. 94 R v Ruiz-Avila (2003) 142 A Crim R 459. 95 Sabato & Hickey v R (1987) 31 A Crim R 72. 96 R v Bui [2005] VSCA 300; R v Garlick (No 2) (2007) 15 VR 388. Note the potential application of R v Scarpantoni (2013) 118 SASR 131 regarding mens rea in relation to quantity in South Australian manufacturing offences to the cultivation offences. 97 R v Whalen (2003) 56 NSWLR 454. 98 Mouroufas v R [2007] NSWCCA 58, [56] (Hoeben J). 99 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72C; Drug Misuse and Trafficking Act 1985 (NSW) s 23(4). 100 Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392. 101 Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 79–80. 102 Drug Misuse and Trafficking Act 1985 (NSW) s 23A (‘enhanced indoor means’). 103 See Controlled Substances Act 1984 (SA) s 33K(1)(ab) (‘artificially enhanced cultivation’). 104 Drug Misuse and Trafficking Act 1985 (NSW) ss 23A, 33AD; see Eyles v R [2013] NSWCCA 128. 105 Controlled Substances Act 1984 (SA) s 33LA; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 9. 106 Controlled Substances Act 1984 (SA) s 33LAB.

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107 Drug Misuse and Trafficking Act 1985 (NSW) ss 24(1) and (2); Controlled Substances Act 1984 (SA) ss 33J, 33; Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71, 71AA, 71AC. 108 See p 222 under the subheading ‘Actus reus’, and Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70(1). 109 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 4 (but note s 70(2)); Drug Misuse and Trafficking Act 1985 (NSW) s 3; Controlled Substances Act 1984 (SA) s 4. 110 R v BD (2001) 122 A Crim R 28, 32. 111 See above n 101. 112 R v Randylle (2006) 95 SASR 574, 583 (Doyle CJ). For further illustration, see the fine distinctions influencing the outcome in the above cases and, in addition, the decisions in Kouroumalos [2000] NSWCCA 453; Marchione (2002) 128 A Crim R 574; Parker (2002) 132 A Crim R 413; and Kaddour (2005) 156 A Crim R 11. 113 R v Blyth [2001] NSWCCA 402 (applying R v CWW (1993) 32 NSWLR 348); Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299. 114 R v Scarpantoni (2013) 118 SASR 131, 141–3 (Kourakis CJ and Sulan J). The reasoning in this case might well be extended to the s 33(2) offence, and perhaps cultivation offences. Compare R v Parisi (2014) 119 SASR 277 in relation to supply offences. 115 Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71A, 71C–71D; Drug Misuse and Trafficking Act 1985 (NSW) ss 11B–11C, 24A–24B; Controlled ­Substances Act 1984 (SA) ss 33A, 33LA–33LB. 116 Prior to the commencement of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth), offences relating to the importation and exportation of narcotic goods were found in the Customs Act 1901 (Cth), particularly s 233B. See R v Campbell (2008) 73 NSWLR 272; and R v Tranter (2013) 116 SASR 452 in relation to Commonwealth legislative power in this context. See also Criminal Code Act 1995 (Cth) Part 9.2, which contains offences relating to the importation of psychoactive substances and serious drug alternatives. 117 Criminal Code Act 1995 (Cth) s 300.4. See Momcilovic v The Queen (2011) 245 CLR 1; R v El-Helou (2010) 267 ALR 734; Buckman v The Queen (2013) 280 FLR 219; Gedeon v The Queen (2013) 280 FLR 275; and Ratcliff v R [2013] ­NSWCCA 259. 118 Criminal Code Act 1995 (Cth) ss 312.2(4)–(5); Weng v The Queen (2013) 279 FLR 119, 137 (Osborn JA). 119 Before the 2010 amendments, the definition of ‘import’ was simply ‘includes bring into Australia’ (which is retained in para (a) of the current definition of import). 120 Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009 (Cth), 188–9. 121 Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131, 139. 122 R v Campbell (2008) 73 NSWLR 272 and later cases also seem to endorse the decision in R v Bull (1974) 131 CLR 203 that goods must be brought into Australia with the intention of landing or discharging them. 123 See also Forbes v Traders’ Finance Corporation Ltd (1971) 126 CLR 429, 432 (­Barwick CJ) and Leff (1996) 86 A Crim R 212, 214 (Gleeson CJ). 124 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49. 125 This includes both the provisions creating offences in Division 307 and the G ­ eneral Principles of Criminal Responsibility addressed in Criminal Code Act 1995 (Cth) ­Chapter 2.

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126 See, for example, Criminal Code Act 1995 (Cth) s 307.1(1), and ss 5.2(1) and 5.6 (and R v Campbell (2008) 73 NSWLR 272, 275 (Spigelman CJ)). 127 See, for example, Criminal Code Act 1995 (Cth) s 307.1(2) and s 5.4(1). 128 See, for example, R v Saengsai-Or (2004) 61 NSWLR 135, 147–8 (Bell J) where the general principles in Chapter 2 of the Criminal Code Act 1995 (Cth) were applied to Customs Act 1901 (Cth) s 233B. 129 Weng v The Queen (2013) 279 FLR 119, 135–6 (Osborn JA). 130 See R v Calis [2013] QCA 165. 131 Criminal Code Act 1995 (Cth) ss 307.1(3), 307.2(3). See also Cheng v The Queen (2000) 203 CLR 248. 132 Criminal Code Act 1995 (Cth) ss 307.1, 307.2, 307.3. 133 Criminal Code Act 1995 (Cth) ss 307.2(4), 307.3(3). 134 Criminal Code Act 1995 (Cth) s 307.4.

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CRIMINAL LAW FRAMEWORK EXTENDED

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CHAPTER 10

EXTENDING CRIMINAL RESPONSIBILITY COVERED IN THIS CHAPTER In this chapter, you will learn about: • attempt • conspiracy • complicity—principals and accessories to crimes.

CASES TO REMEMBER R v Jones (1990) 91 Cr App R 351 DPP v Stonehouse [1978] AC 55 O’Connor v Killian (1984) 15 A Crim R 353 Gerakiteys v The Queen (1984) 153 CLR 317 R v Lee (1994) 76 A Crim R 271 R v Barbouttis, Dale and Single (1995) 37 NSWLR 256 Osland v The Queen (1998) 197 CLR 316 Giorgianni v The Queen (1985) 156 CLR 473 Stokes and Difford v R (1990) 51 A Crim R 25 McAuliffe and McAuliffe v The Queen (1995) 183 CLR 108 R v Taufahema [2006] NSWCCA 152

STATUTES TO REMEMBER Crimes Act 1900 (NSW) ss 344A, 345–351B Crimes Act 1958 (Vic) ss 321–321F, 321M–321S, 323–325 Criminal Law Consolidation Act 1935 (SA) ss 241, 267, 270–270A, 290

INTRODUCTION The extension of criminal liability can happen in three ways. First, an attempt to commit an offence extends liability back to a point where the conduct comprising the offence has not been completed but has gone beyond mere preparation. Second, conspiracy to commit an offence involves extending liability back in time and to other persons, as it is based on the formation of an agreement to do an unlawful act. Third, complicity involves extending liability to persons who have participated as part of a group in an offence committed by another person in that group. As the crimes

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of attempt and conspiracy do not require the completion of another substantive offence, they are sometimes referred to as ‘inchoate’, which means ‘just begun’ or ‘undeveloped’.

ATTEMPT Attempts are offences in which the physical elements of a substantive crime, such as murder or robbery, have not been completed although the defendant intended to commit the crime. This may have been due to the defendant being interrupted or lacking sufficient skills, equipment or other means to complete the offence. In both New South Wales and South Australia, attempt is an offence defined by reference to the common law, though the criminal statutes regulate the penalties and the range of substantive offences that can be attempted. In Victoria, the common law offence of attempt has been abolished1 and ‘attempts’ are now defined by statute; however, the common law continues to provide guidance on how the statutory offence is interpreted and applied. Table 10.1 provides a useful overview of the important features of attempt offences in the three common law jurisdictions. The commentary following the table expands upon the conduct and mental elements and briefly explores the interesting questions as to legal and factual impossibility of the actus reus.

MENTAL ELEMENT As illustrated in Table 10.1, the definitions of ‘attempt’ at common law and the statutory form in Victoria are very similar. First, in relation to the mental element it is clear that, as a conviction for an ‘attempt’ will subject an accused who has not committed a substantive offence to criminal liability, the law demands the strictest form of mens rea to justify a criminal sanction. As the accused’s actions may have a legitimate purpose, it is largely the intent of the accused that will make the actions criminal. Consider the example of the potential robber who is apprehended walking towards a post office carrying a toy gun and a note demanding money. It may not be an offence to merely carry a threatening note or a toy gun; the law criminalises the conduct as an attempt largely because of the intent that accompanies those acts. In Britten v Alpogut [1987] VR 929 at 935, Murphy J summarised these principles succinctly when he stated that an accused is ‘punishable for an attempt, not because of any harm that he has done by his conduct, but because of his evil mind accompanied by acts manifesting that intent. The criminality comes from the conduct intended to be done’. To put it simply, intent to commit the completed offence is the mental element of attempt offences at common law2 and in accordance with s 321N(2)(a) and (b) of the Crimes Act 1958 (Vic). The statutory provision requires specific intent in that the

Acts committed that are seen to be ‘sufficiently proximate’ to the commission of ‘a recognised crime’ and not seen ‘as merely preparatory to it’ and which ‘cannot reasonably be regarded as having any purpose other than the commission of that crime’ Common law: Britten v Alpogut [1987] VR 929; R v Mai & Tran (1992) 26 NSWLR 371; R v Nguyen [2001] NSWCCA 132; Park v The Queen (2010) 202 A Crim R 133; Inegbedion v R [2013] NSWCCA 291.

Intention to commit ‘a recognised crime’ Common law as above

Conduct elements— actus reus

Mental element— mens rea

FEATURES CRIMES ACT 1900 (NSW) OF ATTEMPT OFFENCE

(Continued )

Common law definition as for New South Wales and relevant authorities as above

Common law definition as for NSW—see also R v Collingridge (1976) 16 SASR 117; R v Kristo (1989) 39 A Crim R 86; R v Irwin (2006) 94 SASR 480

Conduct of person must be more than merely preparatory and immediately and not remotely connected with the commission of the offence—s 321N(1)(a) and (b)

The person must intend that the offence the subject of the attempt be committed; and intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place— s 321N(2)(a) and (b)

CRIMINAL LAW C ­ ONSOLIDATION ACT 1935 (SA)

CRIMES ACT 1958 (Vic)

TABLE 10.1 Basic comparison of features of the attempt offence across the common law jurisdictions

Any offence as generally applied at common law; available as an alternative verdict for any indictable offence—Criminal Procedure Act 1986 (NSW) s 162

Same penalty as completed offence unless specified in the Act, for example ‘Attempted murder’—ss 27–30, 344A(1)

No—rejected in R v Mai & Tran (1992) 26 NSWLR 371

What crimes can be attempted

Penalties

Factual impossibility as defence?

FEATURES CRIMES ACT 1900 (NSW) OF ATTEMPT OFFENCE

No—rejected in Britten v Alpogut [1987] VR 929 and in s 321N(3)

Range of proportionate penalties provided in table set out as part of s 321P(1)(a), generally increasing based on nature of and penalty for completed offence—s 321P(1) (a)–(c)

Any offence—used in a general sense in s 321N Attempts to commit indictable offence—s 321M Attempts to commit offence outside Victoria—s 321O

CRIMES ACT 1958 (Vic)

No—rejected in R v Irwin (2006) 94 SASR 480

Attempted murder or treason— life imprisonment; attempt to commit an offence punishable by life imprisonment—12 years; in any other case—two-thirds of maximum penalty for completed offence— s 270A(3)(a)–(c)

Any statutory or common law offence—s 270A(1); available as an alternative verdict for any offence— s 290

CRIMINAL LAW C ­ ONSOLIDATION ACT 1935 (SA)

TABLE 10.1 Basic comparison of features of the attempt offence across the common law jurisdictions (Continued )

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accused must intend that the substantive offence be committed and intend or believe that any circumstances that are elements of the completed offence will exist at the time the offence is committed. It is possible to attempt to commit crimes that require a mental element, such as intention, recklessness or negligence. It is also possible to attempt strict liability crimes as long as the accused intends to commit the specific offence.3 An important illustration is ‘attempted murder’. Although the mens rea for murder extends beyond an intention to kill to an intention to do grievous bodily harm or reckless indifference to human life, ‘attempted murder’ can only be committed where it can be proved that the accused intends to cause death.4 Therefore, in Knight v The Queen (1992) 175 CLR 495 an accused who shot and killed another person had his conviction for attempted murder quashed because, based on the evidence available, it was arguable that the shot that killed the victim was fired recklessly, without an intention to kill. The inflexible application of the requirement of specific intent for attempt offences has created difficulties and is best regarded as a general rule with some exceptions at common law. One specific category of offences in which the rule has not been applied, or has been flexibly applied, is sexual assault. In R v Evans (1987) 48 SASR 35, it was held that an accused could be convicted of ‘attempted rape’ if they were reckless with regard to the victim’s consent. While this appears to conflict with the principles in cases such as Knight, the South Australian Court of Criminal Appeal distinguished between the mental element of an accused with regard to the consequence or purpose of their actions and the circumstances in which their actions are committed. It held that intending to have sexual intercourse while reckless about the complainant’s consent would amount to intention to commit the completed offence. Section 61HA(1) of the Crimes Act 1900 (NSW) provides for a statutory exception to the general rule regarding specific intent for attempt offences in relation to attempted sexual assaults in New South Wales.5 This is in contrast to the statutory requirements in Victoria where the accused must intend or believe that circumstances constituting an element of the intended offence will exist at the time the offence is to take place.

CONDUCT ELEMENTS It is difficult to state with precision the physical acts necessary to constitute an attempt offence, but the common requirements of proximity and acts that are more than preparatory provide a useful guide. There have been a number of tests developed and considered at common law, including the ‘last act’ test, the ‘unequivocality’ test and the ‘if not interrupted’ test. These specific tests have ultimately been rejected by the courts as too inflexible and narrow.6 The common law has settled on the proximity test,7 which is also reflected in s 321N(1) of the Crimes Act 1958 (Vic). The common requirements are that the acts of an accused must be

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immediately connected or ‘sufficiently proximate’, and more than preparatory to the commission of the completed offence, for an ‘attempt’ to have occurred. It is difficult to generalise about what specific conduct will fit the requirements of the proximity test, and it must always be considered in relation to the particular facts of a case.8 Some general observations, however, may be made from the case law that has developed in this area. Proximity is a concept that includes the consideration of the temporal, physical and task-related connections to the completed crime. It involves consideration of whether the accused has begun executing a plan to commit an offence, and the progress they have made with that plan. The temporal connection queries how close in time the accused’s actions are to the completed offence. The physical connection looks at how close the accused’s actions are to the location of the planned offence. The task-related connection asks what step of the proposed plan the accused had reached and how many more steps needed to be taken.

A CASE TO REMEMBER R v Jones (1990) 91 Cr App R 351 In this case an accused had formulated a plan to kill his former girlfriend’s new partner. He disguised himself and, armed with a sawn-off shotgun, secreted himself in the victim’s car. A struggle ensued, the victim survived and the accused was charged with attempted murder. The court held that, while the actions of obtaining and preparing the weapon, disguising himself and travelling to the scene were preparatory and not sufficiently proximate to the offence, the acts of getting into the car and pointing the weapon at the victim were sufficient to constitute an ‘attempt’.

The problem lies in determining when an action is too remote from the commission of the offence to constitute an attempt, and when preparation stops and perpetration begins.

A CASE TO REMEMBER DPP v Stonehouse [1978] AC 55 In this leading case on the law of attempt, the accused, a prominent British businessman and Member of Parliament, was in financial difficulty and had faked his own drowning while on a business trip in America. His wife, who was not a party to the scheme, contacted her solicitors about making an insurance claim, and the solicitors subsequently contacted the insurance company; however, no claim was made. Mr Stonehouse was soon discovered in Australia and charged with attempting to enable another to obtain property by deception. The accused argued that as an insurance claim had not been made9 his conduct was merely preparatory to the offence and thus could not constitute an ‘attempt’. The House of Lords drew a distinction between acts of preparation and embarking on the crime proper, holding that the accused’s actions in taking out the insurance policy were only preparatory,

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but by faking his death he had put the plan into action and crossed the point of no return. Viscount Dilhorne regarded the defendant’s actions as not merely a step in preparation but a step in the execution of a plan (at 71). Lord Diplock found the acts to be sufficiently proximate as they demonstrated a ‘fixed, irrevocable intention to go on to commit the complete offence’ (at 68).

A definitive distinction between preparatory acts and acts proximately connected to an offence remains elusive and there are contradictory examples in the case law. In a situation similar to the hypothetical robbery example given earlier, an accused was held to be not guilty of an attempt to rob a post office, despite having been apprehended by police just outside the post office carrying an imitation firearm and a note demanding money.10 Attempting to gain entry to premises and fleeing when observed by police has, however, been held to be an attempt, not merely preparatory actions.11 Similarly, concealing oneself in the roof cavity of a building in a high-security prison has been held to constitute an attempt to escape lawful custody. 12 Overall, it is important to carefully consider all the specific evidence available of an accused’s intention and the nature and extent of the acts they have committed in deciding whether they have reached the threshold of an attempt to commit a crime.

A CASE TO REMEMBER O’Connor v Killian (1984) 15 A Crim R 353 The strength of the evidence of intent may be an important consideration where there is a doubt about whether the acts of the accused are sufficiently proximate to the commission of the crime, as seen in O’Connor v Killian (1984) 15 A Crim R 353. In this South Australian case, the accused was charged with attempting to obtain money by false pretences after trying to cash cheques addressed to the previous occupant of her house. The accused had admitted that she intended to obtain the money, but argued that her actions in opening an account in the name of the previous occupant were merely preparatory. She argued that her actions were only preparatory as she had not gone back to the building society to draw on the account because she knew she would have to provide identification. The court rejected this argument, citing People v Berger 280 P 2d 136 (1955) as authority for the principle that when intention is clearly established, such as when it has been admitted, acts that would not otherwise be sufficient may constitute an attempt.

IMPOSSIBILITY OF THE ACTUS REUS An interesting question arises when the circumstances are such that it was not possible that the accused could have committed the completed offence. Can they still be guilty of an attempt? Consider the scenario of the would-be robber carrying

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the toy gun. What would the situation be if, after arriving at the scene, he discovered that the particular post office was closed for a public holiday? Could he be convicted of attempting to rob a business that was not operating that day? Generally the answer is ‘yes’, provided the acts carried out are sufficiently proximate and done with an intent to commit the completed offence. First, a distinction must be drawn between factual and legal impossibility. Legal impossibility occurs when what the accused has attempted is not a crime but the accused believes that it is (for example, committing adultery, which is no longer a crime). Alternatively, it can occur when the accused could not legally be held to have committed a crime (for example, if an accused is below the age of criminal responsibility).13 Clearly, in such circumstances no crime is committed. Factual impossibility is a more difficult concept, and the existence of such a defence was originally recognised by the House of Lords in Haughton v Smith [1975] AC 476, but it has been overturned by subsequent legislative reforms and judicial decisions.14 In both Victoria and New South Wales, the decision of the United Kingdom Court of Appeal in R v Shivpuri [1986] 2 WLR 988 has been followed in holding that the fact an offence cannot physically be committed is not a defence to a charge of attempt. In Britten v Alpogut [1987] VR 929, an accused was convicted of attempting to import cannabis despite the fact that the substance they were importing was not cannabis. Murphy J highlighted the emphasis on the criminal intent of the accused in the law of attempt, irrespective of whether the acts they performed were innocuous or the crime could have in fact been accomplished. His Honour gave an example of trying to shoot another with a gun that the accused did not know was unloaded to illustrate an intent deserving of punishment despite the fact that the complete offence could not be committed. The court held that Haughton v Smith did not represent the common law in Victoria and that impossibility was irrelevant unless the crime intended was not in reality a crime. This position is now reflected in s 321N(3) of the Crimes Act 1958 (Vic). The decision in Britten v Alpogut was subsequently applied in New South Wales in R v Mai and Tran (1992) 26 NSWLR 371. The Court of Criminal Appeal affirmed Mai’s conviction for attempted possession of heroin despite the fact that police had intercepted the heroin in question and replaced it with plaster of Paris. The court adopted the test laid down in Britten v Alpogut in holding that, if an accused performed acts towards the commission of an offence with the specific intention to commit that offence (if the facts and circumstances had been as the accused believed them to be), that constituted an attempt.15 As illustrated in cases such as R v Collingridge (1976) 16 SASR 117 and R v Kristo (1989) 39 A Crim R 86, South Australia is the one jurisdiction that is somewhat willing to follow Haughton v Smith, although the defence has been given

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quite a narrow application. The South Australian courts have tended to treat these cases as the accused having insufficient means to complete the offence (a separate category discussed in R v Collingridge which would result in conviction of attempt) rather than it being physically impossible (which would have provided a defence). More recently, in R v Irwin (2006) 94 SASR 480 the defence of impossibility was argued in relation to an ‘attempted robbery’ where the intended victim had no money. Bleby J (with whom Duggan and Anderson JJ agreed), at 487–8, stated that the South Australian Supreme Court should act consistently with other common law jurisdictions, was not bound to follow the obiter dicta in R v Collingridge, and thus clearly rejected the defence of factual impossibility as recognised in Haughton v Smith.

PREPARATORY CRIMES There is a trend in modern legislation to criminalise conduct preparatory to an offence, with the effect that conduct that may not amount to an ‘attempt’ becomes an offence of itself without the need to prove any further acts in pursuance of the commission of an offence. These ‘anticipatory offences’ range from possessing equipment or instruments with intent to use them for theft or dishonesty offences 16 and possessing chemicals, equipment or instructions to be used in the course of drug manufacture17 to communicating with children to procure possible sexual contact (‘grooming’ offences).18 Other examples of offences consisting of preparatory conduct are the range of anti-terrorism offences in Part 5.3, Divs 101 and 102 of the Criminal Code Act 1995 (Cth), including preparing or planning acts of terrorism, training for and financing terrorism, or even being a member of, or associating with, declared terrorism organisations.

CONSPIRACY A conspiracy offence extends criminal liability further back in time than an ‘attempt’, essentially criminalising an ‘agreement … to do an unlawful act or to do a lawful act by unlawful means’19 even when no subsequent steps have been taken towards the commission of the offence. As Maxwell P, Neave and Redlich JJA noted in Director of Public Prosecutions v Fabriczy (2010) 30 VR 632 (at 637–8), ‘[t]he essential feature of the offence of conspiracy is the agreement … It is this element which differentiates the offence of conspiracy to commit a substantive offence from the offence of attempting to commit the substantive offence, and from the substantive offence itself’. Conspiracy offences are justified on three bases: effective preventative law enforcement, reaching those who organise and plan crimes but take no part in their commission, and the fact that those who work in groups are more likely to proceed

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with committing offences than a person operating in isolation.20 Conspiracy has been criticised as potentially encompassing too broad a range of conduct, and there have been extensive judicial and policy debates about the categories of conspiracy. 21 These have been closed at common law, although it is still possible for legislatures to create new conspiracy offences. Conspiracy is an offence at common law in both South Australia and New South Wales, although some specific statutory offences have been created, such as ‘conspiracy to murder’.22 In Victoria, ‘conspiracy’ is now proscribed under s 321 of the Crimes Act 1958 (Vic), and its elements are framed in substantially similar terms to the common law definition: 321 Conspiracy to commit an offence (1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an o ­ ffence by one or more of the parties to the agreement, he is guilty of the ­indictable offence of conspiracy to commit that offence. (2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement— (a) must intend that the offence the subject of the agreement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under subsection (1) of conspiracy to commit an ­offence notwithstanding the existence of facts of which he is unaware which make ­ ommission of the offence by the agreed course of conduct impossible … c

At common law, the following statement by Willes J in Mulcahy v R (1868) LR 3 HL 306 at 317 was endorsed by Brennan and Toohey JJ in R v Rogerson (1992) 174 CLR 268 at 280–1, and more recently by French CJ in The Queen v LK; The Queen v RK (2010) 241 CLR 17723 at 207: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself …

Before turning to a brief consideration of the specific elements of conspiracy, it should be noted that it is difficult and somewhat artificial to analyse a conspiracy in the traditional way, as requiring both conduct and mental elements. The central feature of a conspiracy is the agreement to commit the unlawful act (or in Victoria to engage in a course of conduct that will involve the commission of an offence) and so, logically, it is difficult to separate the physical act of an agreement from the accused’s

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intention to agree. It is also difficult to determine the requisite mental element for an individual accused of conspiracy, as an agreement must involve a degree of shared intention, often referred to as the ‘common design’ or ‘common purpose’.

THE AGREEMENT A good starting point is the Victorian case of R v Orton [1922] VLR 469, in which it was held that an ‘agreement’ capable of constituting a conspiracy did not have to be a formal agreement, and that the conspirators did not have to be acting in the one location, or have even met one another. When some communication between at least two parties has taken place and it can be inferred that each member possessed a ‘conscious understanding’ of a ‘common design’ or ‘common criminal purpose’, there is an agreement. Logically, direct evidence of an agreement (that is, a witness who saw or heard it being made and is willing to testify to that fact, or telephone or email intercepts that record an agreement) will not always be available. Therefore, the existence of an agreement will frequently need to be inferred from circumstantial evidence, and it must be the only reasonable inference available from the evidence.24 The parties to an agreement must intend to enter into that agreement. 25 Mere negotiation or discussion of a potential plan or agreement is not sufficient, nor is simply knowing about a plan, or expecting that it is to take place. Therefore when X sells drugs to Y, knowing or expecting that Y will on-sell them to others, but X has been paid and has no further involvement, X has not conspired with Y to supply drugs.26 The further sale must amount to a type of ‘joint venture’ for a ‘conspiracy’ to exist.27 New parties can join the conspiracy at any stage, thus becoming parties to the original agreement28 or, alternatively, if they have a more limited knowledge or role, they may be party to a different conspiracy.29 The parties to an agreement will be liable even when it is agreed that a third party, not party to the original agreement, will commit the offence. This may not be the case under Crimes Act 1958 (Vic) s 321(1), which contains a requirement that one of the parties to the agreement will commit the offence. Therefore, if A and B agree to locate and hire a contract killer to murder someone, a conspiracy to murder may not be in effect until the killer has been approached and agreed to take the contract. A and B may, however, be charged with conspiring to incite, aid or abet the third party. 30 Note also that it is enough that the parties agree that only one of the conspirators will be actively involved in executing the agreement; there is no requirement that all of the parties to the conspiracy each play a role in putting their ‘joint venture’ into action. Therefore, where C and D agree that C will murder D’s wife (and that D will take no further steps to implement the agreement), both C and D may be charged with conspiring to murder D’s wife.31

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In practice, the nature and scope of the agreement must be established with sufficient precision to distinguish between situations where there is one conspiracy of common design or purpose as opposed to several similar but separate conspiracies.

A CASE TO REMEMBER Gerakiteys v The Queen (1984) 153 CLR 317 The brief facts were that Dr Gerakiteys and a co-conspirator Harrison, an insurance broker, agreed with several others to defraud various insurers and the Commonwealth Government. Harrison arranged insurance and introduced the others to Dr Gerakiteys, who then falsely diagnosed that the participant had an injury or medical condition so that they would receive medical insurance and welfare payments. The prosecution had charged a general conspiracy involving Dr Gerakiteys, Harrison and the nine individual claimants in this case, but the High Court ultimately held there was no basis for finding a single, all-embracing conspiracy and entered a verdict of acquittal. Each of the nine individual claimants had intended to defraud only their own insurer so the facts disclosed several separate and smaller conspiracies. Deane J held that ‘the gist’ of the crime of conspiracy lay in the making of the relevant agreement and it was the ‘the subject matter and purpose’ of the agreement which made it criminally unlawful. Gibbs CJ stated (at 320), ‘the case resembles R v Griffiths [1965] 2 All ER 448 … the claimants were parties to a number of different conspiracies, not to one common conspiracy’.

Gerakiteys is not authority, however, for the proposition that each party to a conspiracy must have precisely the same objective.

A CASE TO REMEMBER R v Lee (1994) 76 A Crim R 271 Lee and another man (H) were convicted of conspiring with each other and persons unknown to supply drugs. There was evidence that they both shared a common supplier, knew that the same individual supplied them both, and had met and discussed their roles and strategies. The accused sought to argue, on the basis of Gerakiteys, that they were not part of one large common conspiracy but similar yet independent conspiracies and had merely been discussing strategies in relation to their separate activities. The prosecution was successful in proving the existence of a single broad conspiracy with the common purpose of supplying drugs by proving that Lee and H were part of a distribution network of their mutual supplier. They did not merely discuss the strategies of their independent enterprises, but each knew of their mutual supplier’s plans and their individual roles in those plans, exchanged advice, and gave each other assistance in furtherance of those plans.

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Because the central element in a conspiracy is an agreement, it follows that two or more parties must be involved. There is, however, a range of circumstances in which only one party might be convicted, on a charge of conspiracy. A specific co-conspirator may not be able to be identified (person/s unknown), may have died, may not be able to be located, or may have been granted immunity from prosecution in exchange for agreeing to give evidence against a co-conspirator.32 One party to the conspiracy may be an undercover law enforcement officer. If an undercover agent does not specifically intend to take part in the conspiracy and joins with another person or group simply to learn information about them, this would not amount to participation in the conspiracy.33 It is also no barrier to conviction for conspiracy that a co-conspirator has been acquitted after trial, as in R v Darby (1982) 148 CLR 668, where the High Court rejected the argument that it was fundamentally inconsistent to acquit one conspirator and convict another, and explained that an acquittal was not tantamount to a declaration of innocence. This common law position is reflected in Crimes Act 1958 (Vic) s 321B, which provides that a conviction for ‘conspiracy’ may stand where other co-conspirators are acquitted unless, in the circumstances of the case, the conviction is inconsistent with the acquittal of the other conspirators. 34

THE UNLAWFUL ACT AND FACTUAL IMPOSSIBILITY Courts and commentators have noted that an agreement to carry out an unlawful act and an agreement to carry out a lawful act by unlawful means are essentially the same thing; an unlawful means of carrying out a lawful act is an unlawful act. 35 Often this will involve an agreement to commit a recognised criminal offence. What happens when it is impossible for an offence to be committed as a result of the agreement? Initially English courts applied similar reasoning to factual impossibility in ‘conspiracy’ as had been applied to ‘attempts’, following the decision in Haughton v Smith. In DPP v Nock [1978] 2 All ER 654, the House of Lords quashed the appellant’s conviction for ‘conspiracy to produce cocaine’ as it was impossible to extract cocaine from the mixture of substances agreed to be used. DPP v Nock has not been followed in Australia.36 The focus of the law of conspiracy on the purpose of the agreement has, however, led to a subtle difference, one that may afford limited scope for impossibility arguments to be raised.

A CASE TO REMEMBER R v Barbouttis, Dale and Single (1995) 37 NSWLR 256 The several accused were charged with conspiring to ‘receive stolen property’ in relation to fifty boxes of cigarettes, which the accused agreed to purchase from an undercover police officer who represented that the cigarettes were cheap because they had been stolen. In fact, the cigarettes were not stolen; they were part of an undercover police operation.

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The offence of receiving stolen property was therefore impossible to commit in relation to the cigarettes. Smart J held that, notwithstanding the subsequent developments in the law of ‘attempt’, the reasoning in Haughton v Smith was still ‘formidable’ and dismissed a prosecution appeal against the decision of the District Court judge to quash the original indictment on the basis of factual impossibility. While both Dunford J and Gleeson CJ agreed that Haughton v Smith and DPP v Nock no longer represented the common law in Australia, Dunford J also dismissed the appeal, having considered the specific agreement the accused had made. The accused had agreed to purchase a specific parcel of cigarettes and, as the cigarettes were not stolen, they had not agreed to commit an unlawful act in agreeing to purchase them. Accordingly, this element of ‘conspiracy’ could not be established (rather than it being impossible to carry out the agreement). While dissenting in the outcome, Gleeson CJ also reasoned that the characterisation of the object of the agreement was decisive, in this case finding it was an agreement or a common design to obtain stolen property, and a conspiracy could be established. As Smart J was alone in recognising factual impossibility as a defence, Barbouttis stands as authority for the proposition that, while factual impossibility is not a defence, the specific nature and purpose of the agreement will be decisive in whether the agreement can be characterised as an agreement to commit an unlawful act.37

Section 321(3) of the Crimes Act 1958 (Vic) is largely consistent with the common law approach to factual impossibility in ‘conspiracy’. The fact that a statutory conspiracy is satisfied by the agreement to ‘pursue a course of conduct involving the commission of an offence’ may also increase the difficulty of contending that the specific agreement was impossible.

MENTAL ELEMENT Although it has been observed that it is difficult to categorise a definitive actus reus and mens rea of ‘conspiracy’ due to the centrality of the agreement, the mens rea of conspiracy was formulated by Lord Hailsham LC in Kamara v DPP [1974] AC 104 at 119 in this way: [M]ens rea is an essential ingredient in the crime of conspiracy. This mens rea consists in the intention to execute the illegal elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct illegal …

First, each accused must intend that the agreement be acted upon and that the unlawful act or offence be carried out. This intent can be inferred from the common design apparent from the nature and scope of the agreement between the co-conspirators.38 In accordance with the result in Gerakiteys, each party must share in this common design for a conspiracy to have been formed. The High Court recently held in The Queen v LK; The Queen v RK (2010) 241 CLR 177 that, as with attempt, each party must specifically intend for the act or offence to be committed,

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even if it is an offence that can be carried out recklessly or negligently, or an offence of strict liability the commission of which would not require a mental element. 39 Second, each accused must know the facts that make what is proposed unlawful. They cannot be said to have agreed to an unlawful act if they did not know the facts that make it unlawful.40 For example, where A agrees with B to transport property from C’s home in circumstances where A believes that B is the owner of the property when that is not the case and B intends to steal the property, then A is not involved in a conspiracy with B. This is because A does not know the facts that make taking the property from C a theft. The requirement that an accused must intend the result as well as have knowledge of what is proposed is reflected in Crimes Act 1958 (Vic) s 321(2). While it is not necessary for the prosecution to prove that any steps have been taken in pursuance of an agreement, usually the prosecution will seek to prove overt acts to establish the existence of an agreement and the accused’s knowledge and intention. As the precise details do not have to be specified for a conspiracy to have been formed, an accused does not have to have intention and knowledge about every act that is carried out in furtherance of the agreement. If they possess the relevant intention and knowledge, an accused ‘does not need to know all there is to know’ about the conspiracy and may even have ‘no idea’ about how the plan is to be executed.41 In Kalajzich & Orrock v R (1989) 39 A Crim R 415 an accused was convicted of conspiracy to murder. One ground of his appeal was that the jury should have been directed that he must have had intention with regard to the various individual steps in the plan, such as seeking out and purchasing the murder weapon, attending meetings about the plan and driving the murderer to the scene. The New South Wales Court of Criminal Appeal rejected this argument, holding that overall intention is relevant, not intention in relation to each overt act.

COMPLICITY This final topic area of extending criminal liability to those who participate in groups is quite complex. Complicity is not a separate offence, but is a method of extending the criminal liability for a completed offence to other participants. Accordingly, an accused who is complicit in a murder is charged with ‘murder’, not ‘complicity to murder’. The basic rationale for extending liability in this way is that those who take part in, promote or assist the commission of an offence can be as blameworthy as those who actually physically carry out the offence. Also, the group or ‘gang’ dimension is considered to be more threatening for victims. Unlike attempt and conspiracy, complicit responsibility is reliant on the commission of an offence by a principal offender.

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In New South Wales and South Australia, the rules for complicit responsibility are found in the common law. As we will see below, the incremental development of those rules over time is (in part) responsible for the complexity associated with the law of complicity in those jurisdictions. Victoria has recently introduced statutory complicity rules (which apply to offences committed on or after 1 November 2014) in an attempt to overcome those difficulties.42 Sections 323–324C of the Crimes Act 1958 (Vic) now effectively codify the law of complicity. While the Victorian statutory complicity rules reflect many aspects of the common law, important departures from the common law position are noted throughout the remainder of this chapter. Table 10.2 provides a basic comparison of the types of conduct that will result in a particular category of complicit liability and the various terminologies used in this regard across the three jurisdictions. Perhaps the most important distinction to make in the common law complicity rules is between primary liability and secondary or derivative liability. This distinction is important because where an accused is charged with conduct incurring secondary liability they are liable to the same punishment as the principal offender, but their conviction is dependent upon an offence being committed by the principal offender.43 Note, however, that complicit liability is entirely derivative under the Victorian statutory complicity rules.44 TABLE 10.2 Complicity terminology and meanings across the common law jurisdictions SCENARIO

NEW SOUTH WALES AND SOUTH AUSTRALIA

VICTORIA—CRIMES ACT 1958

Two or more persons agree to commit an offence and one or more go on to commit the offence; parties to the agreement have the relevant mens rea

Primary liability/‘principal offender’ •• ‘(straightforward) joint criminal enterprise’ •• ‘acting in concert’ •• ‘common purpose’ •• ‘principal in the first degree’ (New South Wales only) •• ‘joint principals’

Secondary or derivative liability Person is ‘involved in the commission of an offence’ by: •• ‘entering into agreement, arrangement or understanding with another person to commit offence’— ss 323(1)(c) and 324(1) Primary liability/‘principal offender’ •• ‘joint principals’

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SCENARIO

NEW SOUTH WALES AND SOUTH AUSTRALIA

VICTORIA—CRIMES ACT 1958

As above, but principal offender commits another offence in addition to or instead of that planned or contemplated

Secondary or derivative liability •• ‘extended joint criminal enterprise’ •• ‘extended common purpose’

Secondary or derivative liability Person is ‘involved in the commission of an offence’ by: •• ‘entering into agreement, arrangement or understanding with another person to commit another offence’ and ‘aware probable that offence charged would be completed in carrying out other offence’—ss 323(1)(d) and 324(1)

A person in some way assists in the commission of a planned offence with knowledge of the ‘essential matters’ of that offence

Secondary or derivative liability •• ‘aids, abets, counsels or procures’ •• ‘principal in the second degree’ (New South Wales only—if present at the scene of the offence) •• ‘accessory before the fact’ (New South Wales only—if not present but assists before commission of the offence)

Secondary or derivative liability Person is ‘involved in the commission of an offence’ by: •• ‘intentionally assisting, encouraging or directing commission of offence’ •• ‘intentionally assisting, encouraging or directing commission of another offence’ AND ‘aware probable that offence charged would be completed in carrying out the other offence’— ss 323(1)(a), (b) and 324(1)

A person who is not present at the scene provides assistance to the principal offender(s) after commission of offence

Secondary or derivative liability •• ‘accessory’ (South Australia) •• ‘accessory after the fact’ (New South Wales)

Secondary or derivative liability •• ‘accessory’—s 325

(Continued )

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TABLE 10.2 Complicity terminology and meanings across the common law ­jurisdictions (Continued ) SCENARIO

NEW SOUTH WALES AND SOUTH AUSTRALIA

VICTORIA—CRIMES ACT 1958

A person has instigated the commission of an offence by another who lacks the intent to carry out an offence by reason of age, mental capacity or deception about the circumstances

Primary liability/‘principal offender’ •• ‘innocent agency’

Primary liability/‘principal offender’ •• ‘innocent agency’

The summary provided in Table 10.2 must be amplified to ensure complete understanding of the various concepts associated with complicity.

JOINT PRINCIPALS In some circumstances where two or more persons are present at the scene of an offence and are taking part with the requisite intent, each may be liable as a joint principal in that they each have primary liability irrespective of whether they individually committed all of the physical elements of the offence. As a simple example, the crime of robbery requires that property be taken from the victim by threat or use of force. Therefore if A and B approach V, and A strikes and holds V down while B removes property from V, both A and B have committed the offence of robbery (notwithstanding that A did not take any property and B did not use any force). In this situation both accused persons have primary liability; it is not necessary to prove the offence was committed by another. Each individual has the mens rea for the offence and jointly they have committed all the acts necessary to complete the actus reus. This form of liability is not a true species of ‘complicity’, but rather an extension of the ordinary rules of criminal responsibility considered in Chapter 2. When it cannot be determined which of the physical elements was carried out by each individual participating in the offence, it is still possible to convict each accused as a principal offender. For example, if three gang members shoot at V, all intending to kill, each can be convicted as a joint principal irrespective of whether they fire the fatal shot,45 and even if it cannot be established that the three gang members were acting in accordance with a prearranged plan.46 There is considerable overlap between the concept of joint principals and that of a ‘joint criminal enterprise’, ‘acting in concert’ or ‘common purpose’. The essential difference is that the existence of a plan is not required to convict an accused on the basis that they were a joint principal.

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JOINT CRIMINAL ENTERPRISE, ACTING IN CONCERT OR COMMON PURPOSE The usual method by which an accused can be held liable as a principal offender despite not committing all of the physical elements of an offence is by proving that they were part of a preconceived plan or agreement with others to commit a particular offence. This is known as a ‘joint criminal enterprise’, ‘acting in concert’ or ‘common purpose’. The High Court has held that each of these terms refers to the same concept or doctrine and they are often used interchangeably.47

A CASE TO REMEMBER Osland v The Queen (1998) 197 CLR 316 Heather Osland (H) and her son, David Albion (A), were charged with the murder of Frank Osland (F), their husband and stepfather respectively. After years of physical and mental abuse from F, H, pursuant to an agreement with A, mixed a sedative into F’s meal and then held him down while A beat him to death with an iron pipe. On appeal to the High Court, H argued that her conviction for murder was inconsistent with A’s acquittal. A had been acquitted on the basis of self-defence following evidence that F had threatened him earlier during the day of the killing. By a majority of 3:2, H’s appeal was dismissed. McHugh J, as part of the majority, gave the most instructive judgment on ‘acting in concert’. His Honour held (at 344) that when more than one offender is present at the scene of the offence as part of a preconceived plan they incur primary liability for the acts of all offenders, whether they have carried out some, all or none of the physical acts: [I]t is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity.

Ultimately, the majority considered that H’s conviction was not inconsistent with the acquittal of A, who actually delivered the fatal blows. The presence and participation of H in pursuance of the planned enterprise, and whose defence of self-defence based on battered woman syndrome had been rejected by the jury, resulted in primary liability for the fatal blows being attributed to her.48

The elements of a ‘joint criminal enterprise’ were stated succinctly by Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545, a case which concerned the liability of the appellant for his role in a large street fight. Hunt CJ at CL proposed these model jury directions at 556–7: •• An accused is liable for the acts of the other persons in a joint criminal enterprise if the existence of the enterprise, and the accused’s participation in it, can be established.

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A joint criminal enterprise exists where two or more persons reach an understanding or arrangement to commit an offence. The agreement can be express or unspoken and inferred from the circumstances and it need not have been formed before the offence, it may be formed ‘then and there’.49 •• An accused participates either by committing physical elements of the offence or being present and intentionally assisting, encouraging or being ready to give aid. •• If the offence is subsequently committed each participant is equally guilty regardless of their role. More recently, the Victorian Court of Appeal in McEwan v R; Robb v R; Dambitis v R (2013) 41 VR 330 at 336–7 endorsed the elements of ‘joint criminal enterprise’ listed above. However, Redlich and Coghlan JJA and Dixon AJA also noted that the accused must be proven to have the state of mind required for the offence.50 The requirement that an accused participate in the joint criminal enterprise, and the associated issue of presence, has received further attention in subsequent cases. The High Court in Huynh v The Queen (2013) 87 ALJR 434 at 442 held that ‘[a] person participates in a joint criminal enterprise by being present when the crime is committed pursuant to an agreement’. In that case, the presence of three accused at the scene as part of a group that shared an understanding that a weapon would be used to seriously injure or kill the victim was enough to prove their participation in a joint criminal enterprise to murder.51 Conversely, the requirement that an accused be present at the scene where the acts have been committed in order to establish participation in a joint criminal enterprise has been liberally applied in a number of cases. In R v Franklin (2001) 119 A Crim R 223, a case where the accused was the alleged ringleader in the beating and murder of the victim but was not present during the whole beating, Ormiston J observed (at 270–1) that ‘continuing presence is not essential’.52 In some instances, presence at the scene has not been required in order for participation in the joint criminal enterprise to be proven. In Sever v R [2010] NSWCCA 135, Latham J acknowledged (at [145]–[146]) that it is ‘possible for the [prosecution] to mount a case based on joint criminal enterprise where the accused [was] not present at the [scene]’; however, the prosecution would need to prove the accused’s participation in a joint criminal enterprise by admissible evidence. 53 Thus, Brown et al. have noted that ‘[p]resence at the scene is not a stand-alone requirement, but just one of the ways that a party can participate in a joint criminal enterprise’.54 Section 323(1)(c) of the Crimes Act 1958 (Vic) provides that a person is ‘involved in the commission of an offence if the person … (c) enters into an agreement, arrangement or understanding with another person to commit the offence’. This provision covers group activity that would fall within the scope of joint criminal enterprise at common law; remember, however, that liability of this type in Victoria ••

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is derivative. The approach to the formation of the agreement and mens rea of the accused outlined above is probably relevant to the interpretation and application of s 323(1)(c). However, note that participation in the agreement does not seem to be required for liability to be extended under s 323(1)(c). Note also that presence is not required for a person to be ‘involved in the commission of an offence’ on this basis in Victoria.55

INNOCENT AGENCY The doctrine of innocent agency can be used to convict an accused as the principal offender when, for some reason, the person who actually committed the physical elements of the offence cannot be prosecuted, or is acquitted and there cannot be derivative liability. For example, consider the situation where an accused convinces an individual with a mental disability, or a child below the age of criminal responsibility, to commit an offence, or tells a responsible adult to collect property on their behalf on the pretence that the property is legally owned by the accused. The doctrine of innocent agency has the effect of making the accused liable as a principal when the innocent party who commits the offence lacks mens rea due to infancy or a mental condition, is ignorant about the circumstances of the offence or is legally exempt from conviction for that offence. The accused, with the requisite intent, has deliberately used the ‘vehicle’ of another person’s physical acts to commit the offence and so primary liability is attributed to the accused in this way. The doctrine of innocent agency has been applied to a wide range of offences and circumstances; examples are drug offences where an accused utilised a commercial airline to physically deliver the drugs;56 murder; dishonesty offences including forgery, theft and fraud;57 and sexual assaults where an accused persuaded another to proceed with intercourse on the basis that the victim was consenting when the accused knew that was not the case.58

ACCESSORIAL LIABILITY Accessorial liability relies on the commission of an offence by another person so that the secondary offender derives their liability from the principal’s offence. 59 It arises at common law and under relevant statutory provisions in New South Wales and South Australia when an accused ‘aids, abets, counsels or procures’ an offence. In Victoria, the common law relating to accessorial liability was abolished in 2014, and statutory provisions using the terms ‘aids, abets, counsels or procures’ were amended. However, the phrase ‘intentionally assists, encourages or directs’ in s 323(1)(a) of the Crimes Act 1958 (Vic) is intended to cover the same behaviours. 60 The words ‘aids, abets, counsels or procures’ have been interpreted at common law61 so that ‘aiding’ and ‘abetting’ generally refer to acts carried out at the scene of the offence (‘principal in the second degree’), and ‘counselling’ and ‘procuring’

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refer to acts carried out in a different location before the commission of the offence (‘accessory before the fact’). Although the individual terms encompass different types of actions, it has been said that they are all formulations of a similar idea: that the accused did, by words or conduct, something to ‘bring about or render more likely’ the commission of the offence.62 The concept of ‘procuring’ can be distinguished from the other terms used to describe the physical element of accessorial liability, as it goes beyond conduct that assists or encourages and addresses acts that cause the commission of an offence. A good example is Attorney-General’s Reference (No 1 of 1975) [1975] QB 773, where an accused, knowing his friend was soon to drive home, spiked his drink with alcohol and the friend was subsequently convicted of driving with an excessive blood alcohol content. While stating that, generally, conduct amounting to aiding, abetting or counselling would involve communication between accused persons and a meeting of the minds, Lord Widgery CJ held that an accused could ‘procure’ an offence that the principal offender had no knowledge of if the prosecution could establish that the offence was caused by the accused’s actions; that was demonstrated in this case. The ‘presence’ requirement for an accessory has been liberally interpreted by the courts and, in some cases, judged to be no longer relevant.63 It has been interpreted to include constructive presence—that is, remaining close enough to offer further assistance to the principal offender. For example, in McCarthy and Ryan (1993) 71 A Crim R 395, an accused who had ‘taken a walk’ while her co-accused sexually assaulted a victim in a stolen car that the accused had driven to the particular location was held to have been sufficiently present to assist the principal offender if necessary. Similarly, in R v Choi (Pong Su) (Ruling No 21), Re: R v Ta Song Wong [2005] VSC 96 the chief engineer of a ship that carried heroin to Australia was held to be sufficiently present to incur liability while the ship waited within a kilometre of the shore after the heroin had been unloaded and brought to shore in an inflatable dinghy. The concept of ‘presence’ is thus somewhat elastic and, even where presence is judged to be essential, an accused need not be continuously present 64 while all the elements of the principal offence are carried out. In R v Phan (2001) 53 NSWLR 480, the accused was present at the scene of a murder and sustained wounds to his person. The prosecution alleged that Phan had taken part in the killing either as a principal offender or by aiding and abetting the killer; Phan claimed the deceased had fired on him and he had lost consciousness. A retrial was ordered, with the court holding that mere presence at the scene of an offence coupled with acquiescence in the offence does not, without more, incur derivative or accessorial liability, as the accused must give some degree of ‘assistance or encouragement’. In R v Lam (2008) 185 A Crim R 453, Buchanan, Vincent and Kellam JJA stated (at 478):

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[I]t is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty … The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime … an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in [their] presence.65

In certain circumstances, however, an accused’s presence alone can be seen as encouraging the principal offender.66 One important factor in this regard is whether the presence is deliberate or accidental. For example, a person walking past a crime and witnessing it as it occurs does not incur liability, but a person’s deliberate attendance at a violent brawl to support and encourage their ‘side’ has been held to be conduct that can incur derivative criminal liability, where the fact of the presence is found to be encouragement. 67 Also, where circumstances reasonably justify intervention, an absence of dissent can amount to encouragement; for example, witnessing a prolonged gang rape at one’s residence and doing nothing to intervene has been found to amount to participation rather than ‘mere presence’.68 Although very slight acts can constitute the conduct elements required for accessorial liability, this is qualified by strict requirements as to the mental elements. As with conspiracy and attempt, an accused charged with incurring derivative liability has not committed an offence and therefore must intend their conduct to assist in the commission of an offence before imposition of a criminal sanction can be justified. This higher standard also protects those who may offer unwitting or naïve assistance to principal offenders. Essentially, there is a two-step test in relation to the mental elements of accessorial liability: (1) the accused must intend that their actions will assist the principal offender in ­committing the principal offence, or an offence of that type, and (2) the accused must know the ‘essential matters’ (conduct elements and mental elements) of the offence the principal offender has committed or is to commit.

A CASE TO REMEMBER Giorgianni v The Queen (1985) 156 CLR 473 Giorgianni (G) leased and operated a semi-trailer which, while being driven by an employee, suffered a brake failure and collided with two cars, killing five people and seriously injuring another. G was charged with several counts of culpable driving causing death and grievous bodily harm on the basis that he had procured the offences committed

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by the driver. There was evidence that G had serviced the vehicle two weeks before the accident, at which stage it was apparent that the brakes were in need of repair, and was informed of concerns held by the employee driving the truck. The trial judge originally directed that G could be convicted if he ought to have known the brakes were defective, or was reckless in that regard. On appeal against conviction, the majority of the High Court held (at 505) that the accused must have actual knowledge of the elements of the principal offence. It is the actual, subjective knowledge of the accused which must be ascertained even where they are an accessory to a strict liability offence. Recklessness is insufficient.

A CASE TO REMEMBER Stokes and Difford v R (1990) 51 A Crim R 25 Difford (D) was charged with being an accessory to maliciously inflicting grievous bodily harm, which Stokes (S) had committed upon another prison inmate. One of the grounds of D’s appeal was that he lacked knowledge of the intention of S to inflict grievous bodily harm. Taking into account the meaning of ‘malicious’ as it then applied, Hunt CJ at CL held (at 41) that for D to be liable as an accessory it had to be established that D knew S intended to cause some physical injury or knew S realised the possibility that such injury might result but went ahead anyway; and, with that knowledge, D intentionally assisted or encouraged S. Accordingly, S may have been reckless in inflicting injury on the victim, but D could not be reckless as an accessory.

This is an important distinction; the accessory must know the conduct and mental elements of the principal offence, but does not need to know the precise consequences of the principal offender’s acts and intention. Therefore, the knowledge that an accessory must have will vary in each individual case. For example, it was not necessary that Giorgianni had knowledge that the culpable driving would result in death or that Difford had knowledge of the specific injuries that were sustained or intended by the acts of Stokes.69 A further example is found in R v Bainbridge [1960] 1 QB 129, where the accused supplied oxyacetylene cutting equipment to the principal offender, believing it was going to be used in relation to breaking up stolen property. However, the equipment was used to break into a bank where money was stolen. The court rejected the appeal against conviction, holding that, although knowledge that a criminal offence is going to be committed is not sufficient, it is not necessary for the prosecution to establish that the accused knows the precise crime or the place or date the offence is to be committed. There must be knowledge that an offence of ‘the type in question’ is to be committed. Therefore, it is sufficient if an accused supplies stolen number plates to another irrespective of their knowledge of when and how they will be used to gain unlawful possession of a vehicle,70 or dishonestly withdraws

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company funds for another, knowing they are to be misappropriated but unsure of what use they will ultimately be put to by the principal offender.71 As noted above, the common law of accessorial liability was abolished in Victoria in 2014, and statutory references to the terms ‘aids’, ‘abets’, ‘counsels’ and ‘procures’ were largely removed. However, the phrase ‘intentionally assists, encourages or directs’ is now used in s 323(1)(a) of the Crimes Act 1958 (Vic) and probably includes much of the conduct covered by accessorial liability at common law. Crimes Act 1958 (Vic) s 323(3)(a) makes clear that presence is not required for a person to be ‘involved in the commission of an offence’ on this basis in Victoria. However, the difficulties regarding ‘mere presence’ and encouragement at common law do not seem to be addressed by the statutory reforms. The use of the term ‘intentionally’ suggests that the common law regarding the mental element of accessorial liability will probably apply to Crimes Act 1958 (Vic) s 323(3)(a).72 Note also s 323(1)(b) of the Crimes Act 1958 (Vic), which provides that a person is ‘involved in the commission of an offence if the person … (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence’. Paragraph (b) thus extends upon par (a) by providing that an accused is also liable for other offences they foresaw as probable when encouraging the original offence.73 This position is not known to the common law, but may assist in relation to cases where the knowledge component of the mental element of accessorial liability presents evidentiary challenges.74

WITHDRAWAL Due to practical considerations, courts have recognised a limited withdrawal ‘defence’ for accused to whom the complicity rules are applied.75 This ‘defence’ is available in relation to all forms of complicity. As Vanstone J observed in R v Sully (2012) 112 SASR 157 (at 178), ‘The more the defendant has done by way of planning or providing information or items to enable completion of the crime, the more is likely to be required of [them] by way of withdrawal or countermand, if [they are] to avoid criminal responsibility’.76 The proximity of the commission of the offence will also influence what steps will amount to an effective withdrawal. At a minimum, assuming the offence is yet to take place, an accused must communicate unequivocally to the other offenders that they do not intend to proceed; a mere secret change of mind or simply ‘not turning up’ to the scene is not sufficient.77 The communication must also be timely in that it must give the other offenders enough ‘notice’ that the accused intends to withdraw. Depending on the particular circumstances, an accused may need to take further steps to prevent the offence, such as informing the authorities,

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if they believe the offence will proceed without their assistance.78 However, little more than withdrawal by leaving the scene may be necessary in cases involving spontaneous or swiftly developing group behaviour.79 When an offence is under way, or the actions of the accused are sufficiently proximate to the beginning of the offence (for example, being at the scene), more may be necessary to effectively withdraw as the accused must take reasonable steps to ‘undo’ their participation. The following are examples of insufficient steps taken by an accessory to effectively withdraw: •• failing to attempt to physically prevent an assault that has escalated 80 •• saying ‘let’s go’ and fleeing when a group of offenders had been interrupted during an armed robbery and the victim was subsequently fatally stabbed 81 •• arranging for packages containing drugs to be couriered to Australia by an airline, but subsequently faxing the airline to cancel the request82 •• participating in a ‘road race’ but braking and slowing down seconds before the other vehicle is involved in a fatal collision.83

EXTENDED JOINT CRIMINAL ENTERPRISE We have considered how an accused can be held liable for the acts of another when they are present and acting in pursuance of a common intention or plan to commit a specific offence. What of the situation, however, where a number of persons plan to rob a bank and one of the group attacks or kills a security guard during the robbery? Can the acts of that accused who killed the guard be attributed to the others in the group, even when they had no intention or knowledge that a victim was to be harmed? This is where the doctrine of extended joint criminal enterprise or ‘extended common purpose’ becomes relevant. Put simply, extended joint criminal enterprise is a unique form of derivative liability through which an accused can be held liable for the acts of a principal offender, constituting an offence that was a possible outcome of the agreed joint criminal enterprise or course of conduct. The application of the doctrine is somewhat controversial as it ‘relaxes’ the high threshold of mens rea that must ordinarily be established for an accessory to be found criminally liable.84 Accordingly, it may be somewhat of a misnomer to think in terms of the shared intention of a group attributing liability to the accused. This is due to the High Court’s expansion of extended joint criminal enterprise to encompass not only offences contemplated as within, or incidental to, the shared intention of a group, but also further offences that can be proven to have been subjectively foreseen as possible by an individual accused.85 It need not be proven that every member of the enterprise foresaw the possibility of those further offences as each individual member must be considered separately. Those who did foresee the possibility of the further offences will be guilty whereas those who did not have such foresight will not be guilty.

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Of course, logically, the extent of the agreed actions and the circumstances in which they are carried out will be relevant to establishing what was actually foreseen by each member of the enterprise. For example, it will be difficult for an accused to avoid liability for murder or manslaughter in a ‘robbery gone wrong’ scenario if they knew a member of the group was armed with a dangerous weapon, even if they did not believe it would be used86 or that the weapon was operational.87 If an accused foresees the possibility that a weapon will be used, but does not foresee that it will be used with intent to kill, they can be convicted of manslaughter rather than murder. 88 Importantly, it is the level of harm intended, rather than the specific weapon (or type of weapon) used, that the accused must be proven to foresee for liability to be extended to them via extended joint criminal enterprise.89

A CASE TO REMEMBER McAuliffe and McAuliffe v The Queen (1995) 183 CLR 108 The two McAuliffe brothers and a third young man, Davis (D), agreed to find a victim to ‘bash’ or ‘rob’. Both D and one of the McAuliffe brothers were armed with a weapon. They viciously attacked two men in a cliff-top park in Sydney and one of the men was later found dead at the base of the cliff. D and the McAuliffe brothers were convicted of murder. The McAuliffe brothers appealed on the grounds that neither had intended to inflict grievous bodily harm, the shared intention of their group being merely to assault and/or rob. The High Court upheld their convictions and made the following observations on the operation of the doctrine now referred to as extended joint criminal enterprise (at 117–18): (1) There must be an agreement or understanding, which can be express or inferred, to commit an offence, often called the ‘foundational offence’, and the accused must ­participate in commission of the offence pursuant to the agreement. (2) The liability of the secondary offender extends not only to the offence agreed to by the joint enterprise but also extends to other offences incidental to, or within the scope of, that enterprise.90 (3) The liability of the secondary offender can further extend to offences outside the scope of that enterprise and not agreed to if they are contemplated or foreseen as possible by the secondary offender and if the offender continues to participate in the venture with that foresight.

The expansion of extended joint criminal enterprise in McAuliffe does not, however, extend derivative liability to an accused for the actions of another merely because they have had some association with, or have been present at, the same scene as the principal offender; a continuing joint criminal enterprise must still be established.

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A CASE TO REMEMBER R v Taufahema [2006] NSWCCA 152 Four men, including Taufahema (T), alighted from a stolen car and ran from the police, in the course of which one of the men fired several shots and killed a police officer. The court found that the action of each accused was a separate attempt to evade capture. Even though they knew the others were doing the same, there was no express or implied agreement they would assist each other. As the prosecution was unable to prove a joint enterprise to commit a foundational offence, T could not be guilty of murder by operation of the doctrine of extended joint criminal enterprise.91

In Victoria, s 323(1)(d) of the Crimes Act 1958 (Vic) provides that a person is ‘involved in the commission of an offence if the person … (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence’. This provision covers group activity that would fall within the scope of extended joint criminal enterprise at common law. However, the Victorian statutory position is narrower than the common law position, requiring foresight of the probability that the offence would be committed. That key difference aside, the common law relating to extended joint criminal enterprise is likely to be relevant to the application of s 323(1)(d).

ACCESSORY AFTER THE FACT Unlike other forms of accessorial liability, the ‘accessory after the fact’ offence is a separate, ‘stand-alone’ offence, distinct from the liability incurred by the principal offender. It is also accurate to say that it is derivative, as an accused cannot incur liability as an accessory after the fact without the prior commission of the principal offence.92 Table 10.3 gives an overview of the features of an ‘accessory after the fact’ offence in each jurisdiction. TABLE 10.3 ‘Accessory after the fact’ offences—common law jurisdictions FEATURES

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)

CRIMINAL LAW CONSOLIDATION ACT 1935 (SA)

Short description of offence and source

Accessory after the fact—common law: ss 347–350 (procedure and penalty)

Accessory after the commission of a serious indictable offence—s 325

Accessory who assists after principal has committed an offence—s 241

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FEATURES

CRIMES ACT 1900 (NSW)

CRIMES ACT 1958 (VIC)

CRIMINAL LAW CONSOLIDATION ACT 1935 (SA)

Conduct elements— actus reus

Acts that assist or may assist the principal offender to evade justice—R v Barlow and Maguire (1962) 79 WN (NSW) 756

Act/s impeding the apprehension, prosecution, conviction or punishment of the principal offender

Acts that impede investigation of the offence or assist the principal offender to escape apprehension or prosecution or to dispose of the proceeds of the offence

Mental elements— mens rea

Know or believe that specific offence had been committed and intended to assist offender to evade justice— R v Stone [1981] VR 737; Gall v R [2015] NSWCCA 69

Know or believe in commission of principal offence or some other indictable offence and act with purpose of impeding the apprehension, etc. of principal offender

Know or believe that principal offence or another offence in the same or partly the same circumstances was committed and act with intent to assist principal offender escape apprehension, etc.

The important conduct element at common law and in the statutory offences is that the act of the accessory must assist, or have the potential to assist, the offender to avoid apprehension or prosecution (examples include assisting in disguising the principal offender, providing them with necessities93 or disguising their vehicle94). The mental elements are that the accused must both know of the commission of the principal offence and intend to assist the principal offender to evade justice. In New South Wales, a jury direction that failed to distinguish between murder and manslaughter as the principal offence was held to be erroneous.95 The statutory provisions in Victoria and South Australia lower the threshold of the required knowledge so that the accessory must know or believe that the principal offence or another indictable or similar offence was committed. Finally, the liability of the accessory after the fact does not depend on the conviction of the principal offender, though it must be established that the offence has been committed.96

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Important references For more extensive coverage of the law and principles relating to attempt, conspiracy and complicity, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the ­Common Law Jurisdictions (4th edn, 2014) Chapter 12 ‘Attempt, Incitement and Conspiracy’ 564–611 and Chapter 13 ‘Participation in Crime: The Doctrine of Complicity’ 614–55. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) Chapter 7 ‘Complicity’ 381–441 and Chapter 8 ‘Inchoate Offences’ 443–500. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 3 ‘Components of Criminal Offences’ 169–74; 185–8 (for material regarding attempt) and Chapter 13 ‘Extending Criminal Liability: Complicity, Conspiracy and Association’ 1136–223. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 8 ‘Attempts’ 275–95 and Chapter 9 ‘Liability of Accessories and Joint ­Principals’ 297–322. Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 10 ‘Attempt, Conspiracy and Complicity’ 466–545. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004) Chapter 8 ‘Inchoate Offences’ 373–423 and Chapter 9 ‘Complicity’ 424–65.

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 What is the ‘proximity’ test for the actus reus of attempt offences? 2 Outline the elements to be established for a conspiracy to exist. 3 In ‘attempt’ after R v Mai and Tran, there is little scope for avoiding liability on the basis that what was attempted was impossible to achieve. Does similar reasoning apply to conspiracy? What importance does the impossibility issue have in the use of undercover police operations? 4 Compare and contrast the legal requirements for accessorial liability with the doctrine of extended joint criminal enterprise (or the equivalent in your jurisdiction). 5 Describe the elements applicable in your jurisdiction that must be proved to establish that a person is an accessory after the fact to an offence.

Problem questions SCENARIO 1 Assume the following facts. Tom (T), Rick (R) and Harry (H) are cannabis growers and dealers who supply most of the cannabis in a small regional town. Recently, their business has been dwindling and their customers have told them that Vincent (V), a new dealer in the area, sells better ­quality cannabis at lower prices. One night T, R and H discuss the issue and suggest ­possible strategies such as lowering their prices or intimidating V into leaving the area. Late in the night, T raises the possibility of having V killed. H replies angrily, ‘Don’t be ridiculous, we grow weed, we’re not murderers; if that’s what you two want to do I don’t want any part of it’, and storms out. T and R agree that if the situation does not improve they will find someone to kill V. T says, ‘We will offer fifteen grand, and they can use my old sawn-off. Now we just have to find someone who will do it’. R agrees. A month later, with their business continuing to decline, T is drinking in a local bar when he meets ‘Max’ (M), a powerfully built young man who claims he has just left the armed forces. After a number of drinks, T discusses the plan with M, who agrees to take on the job for $20,000. T replies, ‘Well, it is more than we wanted to spend but you have to follow my instructions to the letter; I don’t want any loose ends’. Two days later, T meets M in an alley behind the restaurant where V works and hands him a bag containing the shotgun and the money. While waiting in the alley, M examines the shotgun and, having a detailed knowledge of firearms from his time in the military, notices that it will not fire. M decides to use a handgun that he always carries; however, he is seen with the handgun in the alley and decides to abandon the plan and leave. As he is leaving, he notices that the rear door of the restaurant is open and fires several shots, hoping to scare V and therefore convince T to let him keep the money. However, V is killed by one of these shots and M is subsequently charged with murder on the basis that he recklessly caused V’s death. Analyse the criminal liability of T, R and H for (1) cultivating and supplying cannabis, and (2) the death of V. SCENARIO 2 Assume the following facts. Keith, Mick and Ronnie are three youths who live in the inner city region. All three are unemployed, and each has a history of engaging in minor property offences. Late one

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evening, Keith met up with Mick and Ronnie at an inner city train station. The station was near to a large shopping centre, which included a number of shops that operated late into the evening. Charlie had just completed some late-night shopping before catching the train to his home. Keith, Mick and Ronnie saw Charlie walk from the shopping centre to the train station carrying two bags from an electrical goods store; Ronnie said, ‘There is probably some valuable gear in there; we should get hold of it’. Ronnie and Mick boarded the train and sat immediately behind Charlie, while Keith moved to the other end of the carriage so that he could observe events from a distance. Soon after the train started moving, Ronnie walked around in front of Charlie and demanded that he hand over the shopping bags. Charlie motioned to grab his shopping bags, but Ronnie raised his clenched fist and said, ‘Hands up, or you’ll be sorry’. Mick grabbed the shopping bags, and Ronnie, Mick and Keith alighted from the train when it stopped at the next station. Charlie alerted police, who were able to identify Keith, Mick and Ronnie from CCTV footage obtained from the train stations in question. Discuss the criminal liability of Keith, Mick and Ronnie for the robbery of Charlie. For suggested solutions to problem questions, please visit .

Notes 1 Crimes Act 1958 (Vic) s 321S. 2 Britten v Alpogut [1987] VR 929; R v Mai and Tran (1992) 26 NSWLR 371; Inegbedion v R [2013] NSWCCA 291. 3 See R v Mohan [1976] QB 1; Gardner v Ackroyd [1952] 2 QB 743; and Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719. 4 Knight v The Queen (1992) 175 CLR 495; Park v The Queen (2010) 202 A Crim R 113. 5 Section 61HA(1) Crimes Act 1900 (NSW) was amended to achieve this outcome following the decision in WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 where Basten JA had found that the statutory language was not sufficiently clear to displace the general rule requiring proof of specific intent for attempt to be made out. 6 See R v Jones (1990) 91 Cr App R 351 as to the rejection of the ‘last act’ test as illogical. 7 See, for example, Park v The Queen (2010) 202 A Crim R 133. Note, however, that the ‘unequivocality’ test is referred to and applied, on occasion; see, for example, ­Inegbedion v R [2013] NSWCCA 291. 8 Steer v R [2014] NSWCCA 338, [15] (Hidden J). 9 Relying on R v Robinson [1915] 2 KB 342. 10 R v Campbell [1991] Crim LR 268. 11 Davey v Lee [1967] 2 All ER 423. 12 Steer v R [2014] NSWCCA 338, [15] (Hidden J). 13 R v Willis (1864) 4 SCR (NSW) (L) 59. 14 See Criminal Attempts Act 1981 (UK) and R v Shivpuri [1986] 2 WLR 988. 15 Britten v Alpogut and Mai have subsequently been applied in a range of cases, ­including R v Onuorah (2009) NSWLR 1, R v Nolan (2012) 83 NSWLR 534, Weng v The Queen (2013) 279 FLR 119, R v Tranter (2013) 116 SASR 452 and Nelson v Cth (DPP) (2014) 294 FLR 347. 16 Crimes Act 1958 (Vic) s 91; Criminal Law Consolidation Act 1935 (SA) s 270C; Crimes Act 1900 (NSW) s 114(1).

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17 Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71A, 71C—71D; ­Controlled Substances Act 1984 (SA) ss 33A, 33LA–33LB; Drug Misuse and Trafficking Act 1985 (NSW) ss 11B–11C, 24A–24B. 18 Crimes Act 1958 (Vic) s 49B; Criminal Law Consolidation Act 1935 (SA) s 63B; Crimes Act 1900 (NSW) s66EB. 19 R v Jones (1832) 4 B & Ad 345 per Lord Denman at 349. 20 See New South Wales Law Reform Commission, Complicity (Report No 129, 2010) 208, [6.183]. 21 These debates are outside the scope of this book. In this regard, see DPP v Withers [1975] AC 842, R v Cahill [1978] 2 NSWLR 453, R v Sekhon (1992) 63 A Crim R 349, and R v Rogerson (1992) 174 CLR 268 per McHugh J at 305. 22 See Crimes Act 1900 (NSW) s 26 and Criminal Law Consolidation Act 1935 (SA) s 12(a). 23 The decision in The Queen v LK; The Queen v RK (2010) 241 CLR 177 related to the conspiracy provisions in Criminal Code Act 1995 (Cth) s 11.5. The High Court unanimously held that the common law regarding conspiracy informed the interpretation of Criminal Code Act 1995 (Cth) provisions relating to conspiracy. See also Dickson v The Queen (2010) 241 CLR 491 regarding constitutional consequences of differences between Crimes Act 1958 (Vic) s 321 and Criminal Code Act 1995 (Cth) s 11.5. The decision in Dickson also has implications for New South Wales and South Australia where the common law of conspiracy differs from that under the Criminal Code Act 1995 (Cth). 24 See R v O’Brien (1974) 59 Cr App R 222 for a good example. 25 The Queen v LK; The Queen v RK (2010) 241 CLR 177, 208 (French CJ), 228 ­(Gummow, Hayne, Crennan, Kiefel and Bell JJ). 26 R v Trudgeon (1988) 39 A Crim R 252. 27 R v Jones [2000] NSWCCA 186. 28 R v Masters, Richards and Wunderlich (1992) 26 NSWLR 450. 29 Gerakiteys v The Queen (1984) 153 CLR 317. 30 R v Skewes (1981) 7 A Crim R 276; Rolls v R; Sleiman v R (2011) 34 VR 80, 85 ­(Weinberg JA). 31 Rolls v R; Sleiman v R (2011) 34 VR 80. 32 R v Sayers [1943] SASR 146. 33 Yip Chiu-Cheung v R [1994] 2 All ER 924; Kapeliotis (1995) 82 A Crim R 300; R v Cox [2004] NSWCCA 204. 34 See Sleiman v R; Rolls v R (2011) 34 VR 80 for an example of a situation where different verdicts could not be reached in relation to various parties on the available evidence; note also that Sleiman v R; Rolls v R is (at 100) ‘unusual’ because the conversation where the agreement was reached was in evidence in the form of telephone intercepts. 35 Peters v The Queen (1998) 192 CLR 493, 514. 36 See R v Barbouttis, Dale and Single (1995) 37 NSWLR 256 and R v El Azzi [2004] NSWCCA 455. 37 See R v El Azzi [2004] NSWCCA 455 and R v Onuorah (2009) NSWLR 1. 38 In this regard, see also the law relating to evidence admitted under the ­co-conspirators rule—Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87. See also Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; and Tsang v R (2011) 35 VR 240.

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39 See also Ansari v The Queen (2010) 241 CLR 299; Giorgianni v The Queen (1985) 156 CLR 473; and Siracusa v R (1990) 90 Cr App Rep 340. 40 Churchill v Walton [1967] 1 All ER 497, 503. 41 R v Aston (1987) 44 SASR 436, 439–40; R v Huston (2011) 255 FLR 143, 178–9 (Muir and Chesterman JJA, Margaret Wilson AJA). 42 The common law principles regarding complicity were abolished by amendments to the Crimes Act 1958 (Vic), which commenced on 1 November 2014. The common law of complicity applies to offences committed in Victoria before that date. 43 Criminal Law Consolidation Act 1935 (SA) s 267; Crimes Act 1900 (NSW) ss 345–346, 351, 351B. 44 Crimes Act 1958 (Vic) s 324(1). 45 Kanaan v R [2006] NSWCCA 109; see also R v B, FG; R v S, BD (2012) 114 SASR 170, 173 (Kourakis CJ). 46 Mohan v R [1967] 2 All ER 58, 61. 47 See McAuliffe v The Queen (1995) 183 CLR 108, 113 (Brennan CJ, Deane, ­Dawson, Toohey and Gummow JJ); Gillard v The Queen (2003) 219 CLR 1, 35 (Hayne J); ­Likiardopoulos v The Queen (2012) 247 CLR 265, 273 (Gummow, Hayne, Crennan, Kiefel and Bell JJ); and Huynh v The Queen (2013) 87 ALJR 434, 436 (French CJ, ­Crennan, Kiefel, Bell and Gageler JJ). 48 Markby v The Queen (1978) 140 CLR 108 was cited as authority in support of the ­proposition that an accused could be convicted of ‘acting in concert’ with another where that other individual had been found not guilty by reason of a defence specific to them. See also McEwan v R; Robb v R; Dambitis v R (2013) 41 VR 330. 49 See R v Chishimba, Chishimba v R [2010] NSWCCA 228 (per Macfarlan JA and James J; McCallum J dissenting) and Hawi v R [2014] NSWCCA 83 (per Bathurst CJ; compare Price J and McCallum J) as examples of the difficulty that may be associated with proving an agreement by inference. See also Guthridge v R (2010) 27 VR 452; R v Wellgreen [2014] SADC 10. 50 See also KA v R [2015] NSWCCA 111. 51 Huynh v The Queen (2013) 87 ALJR 434, 442 (French CJ, Crennan, Kiefel, Bell and Gageler JJ). Huynh has subsequently been applied in Youkhana v R [2015] ­NSWCCA 41, [13] (Meagher JA); KA v R [2015] NSWCCA 111, [7] (Meagher JA). See also R v Hore; R v Fyffe [2005] NSWCCA 3 and R v Clough (1992) 64 A Crim R 451. 52 See also Likiardopoulos v The Queen (2012) 247 CLR 265, 273–4 (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Arafan v R (2010) 31 VR 82 at 92–3; McEwan v R; Robb v R; Dambitis v R (2013) 41 VR 330 at 337. 53 Sever v R [2010] NSWCCA 135, [145]–[146] (Latham J). See also R v Prochilo [2003] NSWCCA 265 and Youkhana v R [2015] NSWCCA 41, [13] (Meagher JA). 54 See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 1144. 55 Crimes Act 1958 (Vic) s 323(3)(a). 56 White v Ridley (1978) 140 CLR 342; Pinkstone v The Queen (2004) 219 CLR 444. 57 DPP v Stonehouse [1978] AC 55. 58 R v Cogan and Leak [1976] QB 217; R v Hewitt [1997] 1 VR 301. 59 Likiardopoulos v The Queen (2012) 247 CLR 265; R v Demirian [1989] VR 97. 60 The current position in Victoria is outlined in more detail at p 269.

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61 62 63 64 65

66 67 68 69

70 71 72 73 74 75 76 77 78 79 80 81 82 83 84

Giorgianni v The Queen (1985) 156 CLR 473 per Mason J at 492. R v Russell [1933] VR 59. Chief Executive Officer of Customs v Camile Trading and Ors [2001] NSWSC 1075. R v Franklin (2001) 119 A Crim R 223. The Victorian Court of Appeal approved the trial judge’s comprehensive directions on accessorial liability; see R v Lam (No 20) (2005) 159 A Crim R 448. Compare Croxford v R (2011) 34 VR 277. See Al-Qassim v The Queen [2009] VSCA 192, [5] (Buchanan JA); [75] (Dodds-Streeton JA); and LAL v The Queen [2011] VSCA 111, [43] (Buchanan JA). R v Annakin (1988) 17 NSWLR 202; compare Mann v R [2016] NSWCCA 10. R v Clarkson and Carroll [1971] 1 WLR 1402; compare R v Chishimba, Chishimba v R [2010] NSWCCA 228. See also Likiardopoulos v R (2010) 30 VR 654, 673–8 (Buchanan, Ashley and Tate JJA) (where Giorgianni and Stokes and Difford were applied) and Croxford v R (2011) 34 VR 277, 282 (Ashley JA and Ross AJA). Ancuta v R (1990) 49 A Crim R 307. R v Rich (1997) 68 SASR 390. Criminal Law Review—Department of Justice Victoria, Complicity Reforms (2014) 9. Ibid. Consider the potential application of Crimes Act 1958 (Vic) s 323(1)(b) to cases such as R v Bainbridge [1960] 1 QB 129 discussed above. Note that the common law rules regarding withdrawal continue to operate in Victoria; see Crimes Act 1958 (Vic) ss 324(2), 324C (Note). See also R v B, FG; R v S, BD (2012) 114 SASR 170. R v Rook [1993] 2 All ER 955. R v Sua Van Truong (Unreported, CCA (NSW), 22 June 1998). R v Sully (2012) 112 SASR 157. Tietie v R (1988) 34 A Crim R 438; Croxford v R (2011) 34 VR 277; McEwan v R; Robb v R; Dambitis v R (2013) 41 VR 330. R v Becerra (1976) 62 Cr App R 212. White v Ridley (1978) 140 CLR 342. R v Sully (2012) 112 SASR 157; see also Guthridge v R (2010) 27 VR 452. This controversy is beyond the scope of this book. See Stephen Odgers, ‘Criminal Cases in the High Court of Australia—McAuliffe and McAuliffe’ (1996) 20 Criminal Law Journal 43; Stephen Gray, ‘I Didn’t Know, I Wasn’t There: Common Purpose and the Liability of Accessories to Crime’ (1999) 23 Criminal Law Journal 201; David Lanham, ‘Primary and Derivative Criminal Liability: An Australian Perspective’ [2000] Criminal Law Review 707; New South Wales Law Reform Commission, Complicity (Report No 129, 2010) 100–6; Andrew Hemming, ‘In Search of a Model Code Provision for Complicity and Common Purpose in Australia’ (2011) 30 University of Tasmania Law Review 53; Justice Weinberg et al., Simplification of Jury Directions Project—A Report to the Jury Directions Advisory Group (2012) 74–8; Luke McNamara, ‘A Judicial Contribution to Over-Criminalisation?: Extended Joint Criminal Enterprise Liability for Murder’ (2014) 38 Criminal Law Journal 104; and Laura Stockdale, ‘The Tyranny of Small Differences: Culpability Gulf between Subjective and Objective Tests for Extended Joint Criminal ­Enterprise in Australia’ (2016) 90 Australian Law Journal 44. See also R v Jogee; ­Ruddock v The Queen (Jamaica) [2016] UKSC 8; [2016] UKPC 7.

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85 Affirmed in Gillard v The Queen (2003) 219 CLR 1 and Clayton, Hartwick and Hartwick v The Queen (2006) 81 ALJR 439. 86 Gillard v The Queen (2003) 219 CLR 1. 87 R v Jenner (2000) 110 A Crim R 512. 88 R v Barlow (1997) 188 CLR 1; Gillard v The Queen (2003) 219 CLR 1. 89 The Queen v Keenan (2009) 236 CLR 397. 90 Affirming the principle established in Johns v The Queen (1980) 143 CLR 108. 91 See also May v The Queen (2012) 215 A Crim R 527. 92 Dawson v The Queen (1961) 106 CLR 1. 93 R v Hurley and Murray [1967] VR 526. 94 R v Tevendale [1955] VLR 95. 95 Gall v R [2015] NSWCCA 69. 96 Mahadeo v R [1936] 2 All ER 813; Crimes Act 1958 (Vic) s 325(3); Criminal Law ­Consolidation Act 1935 (SA) s 241(5).

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DEFENCES COVERED IN THIS CHAPTER In this chapter, you will learn about: • self-defence • provocation • duress and necessity • fitness to be tried • the mental state defences: mental illness, substantial impairment by abnormality of mind and automatism.

CASES TO REMEMBER The Queen v R (1981) 28 SASR 321 Chhay v The Queen (1994) 72 A Crim R 1 Stingel v The Queen (1990) 171 CLR 312 Lindsay v The Queen (2015) 89 ALJR 518 Taiapa v The Queen (2009) 240 CLR 95 Porter v The Queen (1933) 55 CLR 182 The Queen v Falconer (1990) 171 CLR 30

STATUTES TO REMEMBER Crimes Act 1900 (NSW) ss 23, 23A, 418–423 Crimes Act 1958 (Vic) ss 3B, 322G–322T Criminal Law Consolidation Act 1935 (SA) ss 15–15C, Part 8A Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Mental Health (Forensic Provisions) Act 1990 (NSW)

INTRODUCTION When charged with a criminal offence, an accused may raise a defence on the basis that one or more of the elements constituting the offence definition cannot be established beyond reasonable doubt by the prosecution. In addition, a number of defences exist outside the framework of the definitions of specific criminal offences. These extraneous defences apply either generally to all offences or specifically to certain offences, and are sometimes labelled as ‘justifications’ or ‘excuses’. Such defences do not necessarily have to be established by the accused person. The accused will often have a burden to raise sufficient evidence for the defence to

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be considered by the fact-finder; however, depending on the type of defence, the persuasive burden may ultimately rest on the prosecution to negative the defence beyond reasonable doubt. The first two defences we will examine in this chapter, self-defence and provocation, reflect the principle that in certain circumstances it would be either unjust to convict or just to impose a lesser punishment upon conviction where an accused resorts to violence in response to the threatening or provocative conduct of others. Then we will examine the defences of ‘compulsion’—duress and necessity— where the accused does not deny committing an offence, but asserts they have done so to avoid graver consequences. The other defences and concepts we consider in this chapter are linked to the overlap of mental health issues and the criminal justice system. It is a fundamental principle of our criminal justice system that, for a valid trial to take place, the accused must have the capacity to understand and participate in the trial process, whatever their mental state was at the time of committing the alleged offence. Accordingly, special procedures may need to be adopted to determine whether an accused is fit to be tried and how to proceed once a determination as to the accused’s fitness to be tried has been made. These procedures will be briefly examined before we turn to a consideration of the various mental state defences: mental illness or impairment, substantial impairment by abnormality of mind, and automatism. These defences reflect the principle that people should only be punished for offences for which they are responsible and not, for example, when they are suffering from a mental illness that means that they are unaware of what they are doing or that what they are doing is wrong.

SELF-DEFENCE Self-defence generally operates as a complete defence to a criminal charge; this means that the accused will be found ‘not guilty’ if the prosecution cannot disprove the defence beyond reasonable doubt. Procedurally, once the evidence from either the prosecution or defence at the trial of an accused raises the possibility of self-defence (evidential burden), the onus is on the prosecution to disprove at least one element of the defence (persuasive burden) beyond reasonable doubt. 1 Self-defence applies to all offences against the person, and extends to the defence of another person and to the defence of property in some circumstances. 2 The law relating to self-defence has now been codified in legislation in all three common law jurisdictions.3 There are now substantial similarities in self-defence across the three jurisdictions, which are summarised in Table 11.1. As illustrated in Table 11.1, self-defence involves the organising principles of ‘necessity’ and ‘proportionality’, and the tests for determining the necessity and proportionality of an accused’s actions in self-defence contain subjective and objective elements.

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TABLE 11.1 The definition of and tests for self-defence in the common law jurisdictions

Definition of selfdefence and source of defence

NEW SOUTH WALES

VICTORIA

Crimes Act 1900 s 418

Crimes Act 1958 s 322K

SOUTH AUSTRALIA

Criminal Law Consolidation Act (1) A person is not guilty of (1) A person is not 1935 s 15 criminally responsible an offence if the person for an offence if the carries out the conduct (1) It is a defence to a charge of an offence person carries out the constituting the offence if— conduct constituting in self-defence. (a) the defendant the offence in self(2) A person carries out genuinely defence. conduct in self-defence believed the (2) A person carries out if— conduct to which conduct in self(a) the person believes the charge relates defence if and only if that the conduct is to be necessary the person believes the necessary in selfand reasonable conduct is necessary: defence; and for a defensive (a) to defend himself (b) the conduct is purpose; and or herself or a reasonable (b) the conduct another person, or response in the was, in the (b) to prevent or circumstances circumstances as the person terminate the as the defendant unlawful deprivation perceives them. genuinely of his or her liberty Notes believed them to or the liberty of (1) See s 322M as to be, reasonably another person, or belief in circumstances proportionate to (c) to protect property where family violence is the threat that from unlawful alleged. the defendant taking, destruction, (2) The circumstances in genuinely damage or which a person may believed to interference, or carry out conduct in exist. … (d) to prevent criminal self-defence include— (3) For the purposes of trespass to any •• the defence of the this section, a person land or premises person or another acts for a defensive or to remove a person; purpose if the person committing •• the prevention or person acts— any such criminal termination of the (a) in self defence trespass, unlawful deprivation or defence of and the conduct is a of the liberty of the another; or reasonable response in person or another (b) to prevent the circumstances as he person; or terminate or she perceives them. •• the protection of the unlawful property. imprisonment of himself, herself or another. …

(Continued )

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TABLE 11.1 The definition of and tests for self-defence in the common law ­jurisdictions (Continued ) NEW SOUTH WALES The test for selfdefence

VICTORIA

SOUTH AUSTRALIA

First limb—subjective test First limb—subjective test of the accused’s belief of accused’s belief in the in the necessity for the necessity for their actions conduct

Second limb—mixed subjective and objective test: ‘reasonable response’ of the accused based on their subjective perception of the circumstances or threat (R v Katarzynski [2002] NSWSC 613, [24])

First limb—subjective test of the accused’s genuine belief that the conduct was necessary and reasonable for a defensive purpose Second limb—mixed Second limb— subjective and objective mixed subjective and test: ‘reasonable response’ objective test: conduct of the accused based on must be ‘reasonably their subjective perception proportionate’ to of the circumstances or the threat in the threat circumstances as the accused subjectively believed them to be (Police v Lloyd (1998) 72 SASR 271, 277–8)

The prosecution can negate self-defence by proving that the accused did not subjectively believe that their conduct was necessary in self-defence. This limb of the test is essentially the same in all three jurisdictions. In considering this subjective belief, a fact-finder can consider all of the individual characteristics of the accused. Such characteristics may include the following: that the accused was unusually excitable or nervous, drunk or affected by drugs, suffering from a mental condition, or knew or believed certain things about the victim (such as that the victim was armed, even if the belief was mistaken4). Evidence that the accused has changed their story several times5 may be used by the prosecution as a basis for an inference that the accused did not genuinely believe their conduct was necessary in self-defence, assisting the prosecution to disprove the defence. If the prosecution is unable to disprove that the accused had a subjective belief that it was necessary to act in self-defence, the prosecution can seek to negative the second limb of the defence. This is done by the prosecution establishing that the conduct was in some way objectively unreasonable in the circumstances that the accused perceived to exist. The second limb of the test is expressed in virtually identical terms in all three jurisdictions. In New South Wales and Victoria, the question is whether the conduct was a reasonable response in the circumstances as perceived by the accused. In South Australia, the second limb asks whether the conduct was reasonably proportionate to the threat that the accused believed to

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exist. These tests focus on what would be an objectively proportionate or reasonable response by the accused based on the circumstances or threat that they subjectively perceive. Therefore, some subjective characteristics of the accused and the circumstances in which the offence takes place will be relevant to the second limb in determining whether the response is reasonable or reasonably proportionate. 6 Additionally, Criminal Law Consolidation Act 1935 (SA) s 15B specifically provides that the force used by the accused in self-defence is not automatically judged disproportionate if it exceeds the force used against the accused. Section 322M(1)(b) of the Crimes Act 1958 (Vic) is to the same effect where self-defence in the context of family violence7 is in issue.

FACTORS IN ASSESSING THE REASONABLENESS OR ­PROPORTIONALITY OF THE CONDUCT OF AN ACCUSED ACTING IN SELF-DEFENCE Several factors have been identified both at common law and in the context of the statutory provisions now applicable in New South Wales, Victoria and South Australia: •• Proportionality—the reasonable proportionality of the accused’s conduct is an express requirement of the test in South Australia.8 In the other jurisdictions, although it is not a separate legal requirement, it is often an important factual consideration in determining whether the accused’s conduct was a reasonable response in the circumstances as they perceived them. For example, in the Victorian case of R v Portelli [2004] VSCA 178, an accused who had been convicted of recklessly causing serious injury for using a baseball bat to assist his friend, who was being assaulted, successfully appealed against the trial judge’s direction to the jury that they had to specifically reach a conclusion on whether the use of force was out of proportion to the original assault. In upholding the appeal, Ormiston J stated (at [26]) that, despite the fact that in many cases the question of a proportionate response may be ‘critical’, there was no separate requirement that the accused’s conduct be proportionate; it was but a factor to be assessed in determining the reasonableness of their belief.9 •• The nature of the threat—a closely analogous factor to the proportionality of force used by the accused is the nature of the accused’s conduct and its relationship to a specific, imminent threat. At common law there is no requirement that an accused actually be under attack.10 The self-defence can relate to a perceived threat, allowing scope to argue that various pre-emptive strikes can be carried out in self-defence.11 The threat must, however, have a degree of specificity and imminence.12 In R v PRFN [2000] NSWCCA 230, it was held that self-defence in relation to an accused who had killed a victim (who had several years earlier

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••

sexually assaulted the accused) should not have been left to the jury. The accused claimed he was acting to defend himself and other young males from potential harm. The claim of a generalised, ongoing threat to himself and others was held to be insufficiently specific and imminent to be judged objectively reasonable. In Police v Hailemariam (1999) 73 SASR 319, an accused who returned to the scene of an assault more than an hour later to confront his attackers was held not to be acting in self-defence, the imminent threat having passed. In R v Burgess; R v Saunders (2005) 152 A Crim R 100, two men who painted ‘No War’ on the Sydney Opera House in the lead-up to the 2003 war in Iraq claimed they were acting in defence of other people and property in an attempt to prevent the war. In dismissing their appeal, the New South Wales Court of Criminal Appeal held that it could not find that the conduct of the accused was done reasonably by way of self-defence since there was no imminent, direct or specific threat to property or individuals. The connection between vandalising a landmark and the potential harms that would be caused by the Australian Government going to war was too tenuous to sustain a finding that the conduct was a reasonable response in the circumstances. Willing participant in violence and the need to retreat—there was common law authority to the effect that an accused must attempt to retreat before retaliating when acting in self-defence. The current leading common law authority, Zecevic v Director of Public Prosecutions (1987) 162 CLR 645, demonstrates that this is not a specific legal requirement of self-defence, but is again a factor to be considered in assessing the reasonableness of the accused’s response. For example, in Zecevic the accused had gone to the unit of the victim to confront him about the use of certain facilities in the complex. An argument developed during which the victim stabbed the accused and threatened to shoot him. The accused then returned to his own unit and, fearing the victim would follow through with his threat, retrieved a gun and shot the victim. The High Court held that the fact the accused had not retreated as far as possible (for example, by hiding in his unit or fleeing the premises) before resorting to retaliation was merely a factor in considering whether he had a reasonable belief in the necessity of his action. It was not a basis for withdrawing the defence from the jury.13 An accused who is the original aggressor or who takes part willingly in a fight cannot, as a general rule, claim self-defence.14 In Zecevic, the High Court observed that an accused who is an original aggressor may, however, claim self-defence if it can be demonstrated that their original aggression had ceased to the extent that they reasonably formed a belief as to the need to act in selfdefence.15 Again, this is a factor to be considered in determining the objective reasonableness of the accused’s conduct.

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Unlawfulness of the victim’s conduct—following Zecevic there is no legal requirement that the conduct that the accused responds to must be unlawful. Examples include where the accused responds to an ‘attack’ that they do not realise is a lawful attempt to arrest them or if they are attacked by an aggressor who cannot be held criminally responsible by virtue of mental illness. The common law position is mirrored by Crimes Act 1900 (NSW) s 422(a) and (b).16 This position is qualified to some extent by the observation of the High Court in Zecevic (at [34]) that it would be ‘only in an unusual situation’ that a response to lawful conduct could be considered as self-defence as part of the objective determination of the reasonableness of the accused’s belief. This qualification is reflected in Criminal Law Consolidation Act 1935 (SA) s 15(4), which provides that an accused is not acting for a defensive purpose if they resist law enforcement or respond to a lawful attempt to prevent or terminate unlawful conduct unless they have reasonable grounds to believe the aggressor is acting unlawfully. Similarly, Crimes Act 1958 (Vic) s 322L provides that self-defence is not available if the accused is responding to lawful conduct that they know to be lawful. Intoxication—in R v Conlon (1993) 69 A Crim R 92, an accused, who was under the influence of cannabis and alcohol, killed two men who had come to his property to steal cannabis and had chased and assaulted him. Hunt CJ at CL ruled that the impairment caused by the consumption of alcohol and cannabis could be taken into account in determining both the accused’s belief in the need to act in self-defence and the reasonableness of that belief.17 Since that decision, legislative provisions have been enacted in both New South Wales and Victoria to exclude self-induced intoxication from the objective limb of the test for selfdefence.18 This was the approach taken in R v Katarzynski [2002] NSWSC 613, where Howie J held (at [26]) that, although the reasonableness of the accused’s response is judged by reference to the circumstances the accused subjectively perceives, one subjective factor that could not be taken into account was self-induced intoxication. The South Australian legislation is silent on the issue; however, there is authority consistent with the common law approach stating that intoxication may be relevant to both ‘the accused’s belief as to the circumstances with which he was confronted and his belief as to whether striking the fatal blow was necessary and reasonable to defend himself’.19 In the particular context of an accused acting in innocent defence against home invasion, s 15C(2)(c) of the Criminal Law Consolidation Act 1935 (SA) requires that for an accused to get the benefit of the defence, even though their conduct was not reasonably proportionate to the perceived threat, they must establish that their ‘mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug’, including alcohol.

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EXCESSIVE USE OF FORCE IN SELF-DEFENCE Prior to the decision of the High Court in Zecevic v DPP (1987) 162 CLR 645, the common law position was that when an accused had responded to a threat and killed the victim, and the accused’s response was judged objectively unreasonable or disproportionate to the threat, they could utilise a partial defence known as ‘excessive self-defence’, which reduced their liability to a conviction for manslaughter.20 This approach was, however, rejected by the majority in Zecevic, who stated that an accused who killed the original aggressor after using unreasonable or disproportionate force was not automatically entitled to a verdict of manslaughter. It was one consideration in determining whether the accused’s actions had been reasonable, and if the actions were judged unreasonable then self-defence failed.21 This aspect of the decision in Zecevic has been subjected to substantial academic and judicial criticism and has since been reversed by statute in each jurisdiction. In Victoria, the common law position applied until 2005 when the Crimes Act 1958 (Vic) was amended to provide a statutory test for when an accused argues self-defence in relation to charges of murder or manslaughter.22 Section 322K(3) of the Crimes Act 1958 (Vic) now provides that the defence can be used in cases of murder only if the accused is responding to a threat of death or serious injury to themselves or another. This provision effectively reinstates the pre-Zecevic common law position relating to excessive use of force in self-defence. Section 421 of the Crimes Act 1900 (NSW) provides that an accused who inflicts death when defending themselves or another person (or in preventing or terminating the unlawful deprivation of liberty of themselves or another person) can be alternatively convicted of manslaughter if their conduct is not a reasonable response in the circumstances as they perceive them.23 In South Australia, a similar partial defence applies where an accused inflicts death by conduct that is judged not to be reasonably proportionate to the threat the accused genuinely believed to exist.24 The use of lethal force in relation to defence of property is restricted by the statutory provisions in all three jurisdictions that specify that the defence is not available if an accused recklessly or intentionally causes death and is acting solely to protect property or prevent trespass.25 However, Criminal Law Consolidation Act 1935 (SA) s 15A(2) does contain a partial defence whereby a charge of murder can be reduced to manslaughter if the accused acts in relation to protecting property or preventing crime and does not intend to cause death, and the conduct was not reasonably proportionate to the threat that the accused genuinely believed to exist. Further, s 15C of the Criminal Law Consolidation Act 1935 (SA) provides that if the

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accused acts in innocent defence against home invasion, self-defence is available even though the accused’s conduct was not reasonably proportionate to the perceived threat.

PROVOCATION Provocation is a partial defence and applies only when an accused has been charged with murder. The defence operates to reduce the liability of the accused from murder to manslaughter if it cannot be negatived by the prosecution. It is available as follows: •• New South Wales: Crimes Act 1900 (NSW) s 23 (‘extreme provocation’) 26 •• South Australia: common law—The Queen v R (1981) 28 SASR 321 •• Victoria: abolished by Crimes Act 1958 (Vic) s 3B (in 2005). The often-cited justification for the existence of the defence is that it is a ‘concession to human frailty’ in that, while the law does not justify or excuse murder, it recognises that ‘normal’ or ‘ordinary’ persons are sometimes capable of losing control when provoked and thus that their criminal responsibility should be reduced. Critics of the defence argue that it was developed in a different time when the carrying of weapons and the use of violence was a part of everyday life, and when the mandatory punishment for murder was death. 27 The defence remains controversial in the contemporary context and several Australian jurisdictions, including Victoria,28 have abolished it, so that provocation is now relevant only as a mitigating factor in sentencing in those jurisdictions. The defence was substantially amended in New South Wales in 2014, 29 and has also been reviewed in South Australia.30 The subsequent discussion about the elements of the defence and its application therefore addresses the common law position as it is relevant to South Australia and the current position in New South Wales. In parallel to self-defence, once evidence that indicates the possibility the accused has acted under provocation (the ‘evidential burden’) has been raised, the prosecution bears the onus of disproving the defence (the ‘persuasive burden’) beyond reasonable doubt.31 Although the source of the defence of provocation in New South Wales is statutory, the High Court has observed that the legal requirements at common law and those of the various statutory provisions across Australia have been similarly interpreted by the courts so that there is a ‘degree of unity of underlying notions’.32 A comparison of the requirements of the defence in New South Wales and South Australia is provided in Table 11.2.

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TABLE 11.2 Comparison of the provocation defence in New South Wales and South ­Australia NEW SOUTH WALES

SOUTH AUSTRALIA

Crimes Act 1900 (NSW) s 23

Common law: The Queen v R (1981) 28 SASR 321

(2) An act is done in response to extreme provocation if and only if: (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased. … (10) In this section:

act includes an omission to act.

Such a killing may, however, be reduced to manslaughter if the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought about by acts or words of the deceased amounting in law to provocation taken in the overall context of the deceased’s conduct. To amount in law to provocation the acts or words must satisfy the following tests: •• they must be done or said by the deceased to or in the presence of the killer; •• they must have caused in the killer a sudden and temporary loss of self-control in the overall context of the deceased’s conduct, rendering the killer so subject to passion as to make him or her for the moment not master of his or her mind; •• they must be of such a character as might cause an ordinary person to lose her or his self-control to such an extent as to act as the killer has acted.

Essentially there are three requirements at common law and under s 23 of the Crimes Act 1900 (NSW); we will examine each in turn. Stated succinctly, the requirements of the defence of provocation are as follows: (1) There must have been conduct (acts or words) by the deceased which caused (‘provoked’) the accused to lose self-control. (2) That conduct must have actually caused the accused to lose self-control and carry out the acts or omission causing death (the subjective test). (3) That conduct must have been of such a character that it could cause an ordinary person (or, in South Australia, an ordinary person in the position of the accused) to lose self-control so as to kill (the objective test).

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THE PROVOCATIVE CONDUCT At common law, it is now generally accepted that a wide range of conduct from the victim can, in certain circumstances, amount to provocation. The most prevalent forms of provocation are conduct amounting to an assault, some form of verbal abuse or threats, or acts of sexual infidelity.33 In New South Wales, however, s 23(2) (b) of the Crimes Act 1900 (NSW) requires that the conduct of the deceased said to provoke the accused must itself amount to a serious indictable offence. 34 This requirement has the effect of substantially narrowing the range of conduct that might amount to provocation in New South Wales. Section 23(3)(a) of the Crimes Act 1900 (NSW) also excludes a non-violent sexual advance to the accused from the scope of provoking conduct. Courts have shown increasing willingness to consider the relationship and context in which the conduct takes place when assessing whether it amounts to provocation at common law. This may be particularly relevant when seemingly innocuous acts are the ‘final straw’ in a series of acts that can constitute provocation. This can be particularly relevant in cases where an accused kills their partner after years of being subjected to systematic domestic violence, which may culminate in a final ‘provocative’ incident.35

A CASE TO REMEMBER The Queen v R (1981) 28 SASR 321 The accused killed her husband with an axe while he slept. Earlier in the evening he had attempted to cuddle the accused in bed and remarked that they were going to be a big happy family and that their daughters would not be leaving home. The South Australian Full Court considered this act in the light of context and circumstances, the deceased having a long history of violent and sexually assaultive behaviour, including, as the accused had only recently learned, repeated and violent rapes of their daughters. The court considered that this could amount to sufficient provocation, with the deceased’s actions that evening amounting to a ‘final straw’. The implication of the deceased’s words was that the conduct, including the violent sexual abuse of their daughters, would continue and they would be prevented from leaving home.

Section 23(4) of the Crimes Act 1900 (NSW) continues to reflect this wider contextual relevance as it provides that ‘conduct … may constitute extreme provocation even if the conduct did not occur immediately before the act causing death’ (emphasis added). Thus, applying the current New South Wales position to the facts of The Queen v R above, the conduct of the deceased very likely included aggravated assaults and aggravated sexual assaults that would amount to serious indictable offences, and the fact that such conduct did not occur immediately before the accused killed the deceased would not prevent her from relying on the defence of provocation.36

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The basic common law requirements of provocation from The Queen v R include that the provocative conduct must be carried out in ‘the presence of the killer’. Section 23 of the Crimes Act 1900 (NSW) is silent with regard to presence, requiring only that the conduct be ‘towards or affecting the accused’. Therefore, at common law, situations amounting to ‘hearsay provocation’, where an accused has merely been told of the provocative conduct of the victim, are not usually regarded as having a sufficient causal link.37 For example, in R v Davis (1998) 100 A Crim R 573 the accused had been told that the victim had sexually assaulted several children. The accused then made several threats towards the victim, and one night killed the victim while he slept. The New South Wales Court of Criminal Appeal in dismissing the accused’s appeal against conviction for murder confirmed (Dunford J at 576) that the policy of the common law is that provocation must be a reaction by the accused to some conduct or words of the deceased of which he ‘personally has experience, that is, which occurs within his sight or hearing, even though it need not necessarily be directed towards him’. Simpson J did, however, observe (at 578) that if the accused is provoked by ‘a belief that the conduct occurred’, then if that belief is ‘ultimately shown to have been well founded then it would not … be correct to say that the killer was provoked by the report of the conduct. The truth is the killing was provoked by the deceased’s conduct, conduct which the accused correctly believed to have occurred’. On application for special leave to appeal to the High Court in this case, it was noted that the terms of s 23(2) would allow an accused to show that there was provocation on the part of the deceased as a result of a report of provocative conduct where it induced the accused to lose self-control. This was not the case in Davis; rather, the circumstances showed deliberately planned revenge on the part of the accused. There is scope for further development in this area of hearsay provocation under s 23(2) of the Crimes Act 1900 (NSW), depending on the particular factual situation.38 Words alone can amount to sufficient conduct for provocation despite early common law authority to the contrary.39 Courts will, however, closely scrutinise claims that words alone caused a loss of self-control, as such a claim may be more easily invented.40 At common law it has been held that words must be of a ‘violently provocative’ or ‘exceptional character’ to amount to provocation. In R v Moffa (1977) 138 CLR 601, the victim’s conduct in racially abusing the accused, angrily declaring that their relationship was over and that she had been seeing other men, mocking his sexual prowess and briefly assaulting him, was held to constitute sufficient provocation. In R v Lees [1999] NSWCCA 301,41 the court held that, when viewed in context, comments about an accused’s father who had committed suicide could constitute provocation. The New South Wales Court of Criminal Appeal held that the words did not need to strictly be an insult, but could encompass words uttered for a

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range of other purposes, such as to threaten or blackmail. The court did, however, emphasise (at [37]) that words do need to be of a sufficiently ‘violent, offensive, or otherwise aggravating character to be capable of satisfying’ the requirement that the ordinary person in the position of the accused could lose self-control. It is not sufficient that the words are merely ‘abusive or insulting’ or would ‘normally prompt anger or offence’.42 However, the requirement in s 23(2)(b) of the Crimes Act 1900 (NSW) that the conduct of the deceased amount to a serious indictable offence greatly limits the circumstances in which words alone will amount to provocative conduct. Although it is possible that behaviour involving words alone would amount to a serious indictable offence,43 words that are merely inflammatory or incendiary will not, by that reason alone, amount to provocative conduct. There is no requirement that provocative conduct be ‘aimed at’ the accused, provided the other elements of provocation are present and the accused is ‘implicated in’ or ‘has a connection with’ the conduct (common law) or the conduct is ‘towards or affecting’ the accused (New South Wales).44 For example, offensive or derogatory remarks about an accused’s family are capable of constituting provocation45 as is an assault of a person with whom the accused has a connection.46 Similarly the conduct does not, in some circumstances, have to be solely the conduct of the victim as long as the victim is involved in some way in the provocation. For example, the victim’s conduct in some cases has been nothing more than flirting or having a brief sexual encounter47 or an intimate relationship with the partner or former partner of the accused.48 Where the victim participates in or adopts the provocative conduct of a third person, both will be attributed with the conduct.49 The victim does not have to intend to provoke the accused. A difference between the two jurisdictions is that to satisfy Crimes Act 1900 (NSW) s 23(2)–(4) the conduct must have been ‘of the deceased’ even if they have only limited involvement. At common law, however, the doctrine of ‘transferred malice’ can occasionally allow provocation to operate where an entirely different victim is killed. For example, if an accused heard insults emanating from a group, lost control and mistakenly killed an innocent passer-by, thinking the insults emanated from that person, there is some scope for the accused to argue provocation. 50 Finally, the partial defence of provocation may still be available at common law even if the accused has induced the provocative conduct (depending on all the circumstances of the case). For example, if an accused deliberately places themselves in a position in which provocative behaviour may emanate from another, such as by insulting or goading another into a fight, or breaching an apprehended violence order to confront their former spouse, the defence may still be available. 51 However, the defence is excluded in New South Wales where ‘the accused incited the conduct in order to provide an excuse to use violence against the deceased’. 52

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THE SUBJECTIVE TEST—LOSS OF SELF-CONTROL If the conduct is considered to be capable of amounting to provocation in law, the prosecution can negative the defence by establishing that the accused did not actually lose self-control as a result of the provocative conduct. What is essential is that there has been an actual loss of self-control, and that the killing has taken place while the accused was not in control. First, it is apparent that in assessing actual loss of self-control there is a subjective test that takes into account all the relevant circumstances and characteristics of the accused. Accordingly, the accused’s ethnic origin, sex, age, physical characteristics and temperament are important in determining whether the accused lost self-control and killed the deceased while in this state.53 At common law, the accused’s state of intoxication is also relevant to this inquiry;54 however, in New South Wales, s 23(5) of the Crimes Act 1900 (NSW) provides that self-induced intoxication cannot be taken into account in relation to this aspect of the provocation defence. Second, while the courts have traditionally insisted on a ‘sudden’ loss of self-control and immediate action in response to the provocative conduct,55 there has been a growing judicial willingness to examine the context of the victim’s provocative conduct, including the history between the accused and the victim, in approaching this requirement. There are numerous examples of courts taking a ‘contextual’ approach to the requirement of a sudden loss of control and subsequent act, particularly where the accused has been brought to breaking point56 (which may, for example, be after many years of physical and mental abuse in a context of systematic domestic violence 57). Section 23(4) of the Crimes Act 1900 (NSW) reflects this contextual approach by providing that ‘conduct … may constitute extreme provocation even if the conduct did not occur immediately before the act causing death’ (emphasis added).58

A CASE TO REMEMBER Chhay v The Queen (1994) 72 A Crim R 1 The accused had been forced into an arranged marriage in Cambodia and there was evidence that her husband had been violent and abusive for many years, particularly when affected by alcohol. The prosecution alleged that the accused killed the deceased while he was sleeping. Originally the trial judge directed that there must have been some final provocative act that triggered the loss of self-control. The New South Wales Court of Criminal Appeal overturned the conviction for murder. In considering the development of the common law in the area and the context of the statutory amendments, Gleeson CJ ruled, allowing some flexibility for a delayed reaction, that a loss of self-control need not be the result of a specific final straw, and the act causing death need not occur immediately after the provocative conduct. These were factual matters to be considered in the context of each specific case in which the loss of self-control arose so that the totality of cumulative acts of provocation had to be properly taken into account.

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The contextual application of the requirement for a ‘sudden loss’ of self-control and subsequent act does not detract from the fact that, as a general rule, the longer the period between the provocative conduct and the fatal act—together with evidence of the delay pointing to deliberation and planning on the part of the accused—the greater the chance the prosecution will disprove provocation. 59 As the High Court noted in Pollock v The Queen (2010) 242 CLR 233 (at 250): The circumstance that an accused had time to reflect before reacting to provocation may show that the later killing was an intentional killing carried out from motives of revenge or punishment. … The interval between the deceased’s provocative conduct and the killing may tend to show that the accused had regained control at the time of the killing. … These are matters bearing on the determination of whether the killing was in fact caused by provocation and done at a time when the accused was in a state of temporary loss of self-control [citations omitted].

Third, the surrounding circumstances of an attack will often assist in determining a loss of self-control. For example, in Masciantonio v The Queen (1995) 183 CLR 58, the accused confronted his son-in-law, the victim, at his workplace about the victim’s violent behaviour towards the accused’s daughter. After the victim insulted and assaulted the accused, he viciously attacked the victim with a knife and, despite the presence and intervention of witnesses, continued to stab the victim after he had collapsed to the ground. The short interval between the provocation and the attack, the presence of witnesses and the nature of the attack was held by the High Court (at 69) as ‘pointing to a loss of self-control’. The demeanour of the accused before, during and after the incident may also be relevant: for example, if evidence suggests that the accused is generally gentle or submissive and not prone to violence, a violent attack by the accused may suggest a loss of self-control.60

THE OBJECTIVE TEST—COULD THE ORDINARY ­PERSON LOSE SELF-CONTROL? If the conduct of the victim caused the accused to lose self-control and kill the victim, the prosecution must negative the third aspect of the defence. There are now substantial differences between the position at common law and the statutory position in New South Wales. This section will outline the position at common law, before moving on to address the position under Crimes Act 1900 (NSW) s 23. At common law, the third aspect of the defence requires the prosecution to disprove that the conduct of the victim could61 have provoked an ordinary person in the position of the accused to form an intent to kill or act as the accused did. The actions of the accused are compared with those of an ordinary person in the circumstances of the accused. Put simply, this aspect of the test seeks to ensure that the law applies equally to all, and that individuals exercise control based on an ordinary minimum standard.

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At common law (that is, in South Australia), the objective test involves two steps: (1) What is the gravity of the provocation that an accused, in those circumstances, faced? (2) Could provocation of that degree of gravity cause an ordinary person to lose self-control to the extent that they could form an intention to kill or act in a manner the accused did? When assessing the gravity of the provocation, the test is not purely objective. In Stingel v The Queen (1990) 171 CLR 312, the High Court held (at 324) that in assessing the gravity of the provocation the objective test was not ‘intended to be applied in a vacuum or without regard to such of the accused’s personal characteristics, attributes or history as serve to identify the implications and to affect the gravity of the particular wrongful act or insult’. This step of the test thus attributes the hypothetical ordinary person with the characteristics of the accused that are relevant to the seriousness of the provocative conduct in order to properly contextualise that conduct. Accordingly, characteristics such as an accused’s age, sex, race, religious beliefs, physical features, personal attributes, personal history or relationships will be relevant to this part of the objective test. 62 However, unlike the test for actual loss of self-control the accused’s state of intoxication and temperament are not relevant to an assessment of the gravity of provocation. 63 The High Court observed in Stingel (at 326) that ‘it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is ‘mad’ to know that that person has, and understands that he has, a history of mental illness’. Similarly, in Green v The Queen (1997) 191 CLR 334 the accused had developed a sensitivity to sexual abuse because his sisters had been sexually abused by their father. The High Court held that evidence relating to the accused’s particular sensitivity to sexual abuse should have been permitted in consideration of the gravity of the provocation when the victim, an older friend of the accused described as a ‘father figure’, allegedly made certain sexual advances toward him. In contrast to the first step of the objective test concerning the gravity of the provocation, the second step, which questions whether an ordinary person, facing that degree of provocation, could have lost control, is ‘purely objective’.

A CASE TO REMEMBER Stingel v The Queen (1990) 171 CLR 312 The accused, a nineteen-year-old male, was convicted of murder after he stabbed the boyfriend of his former girlfriend. The incident occurred following a party when the accused was insulted and told to leave, after he had confronted the victim and his former girlfriend engaged in sexual activity in a parked car.

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The High Court held (at 327) that the two parts of the objective test for provocation are as follows: While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and ­assessing the gravity of the wrongful act or insult, the ultimate question posed … relates to the possible effect of the wrongful act or insult, so ­understood and assessed, upon the power of self-control of a truly hypothetical ‘ordinary person’. Subject to a qualification in relation to age … the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused.

The High Court went on to state (at 331–2) that ‘age’ was the sole characteristic of the accused to be attributed to the hypothetical ordinary person, especially in the sense of immaturity, in determining whether an ordinary person could have lost self-control in those circumstances. While Stingel was decided under the Tasmanian Criminal Code, the majority considered (at 320) that their reasoning applied equally to the common law and to the New South Wales statutory provision. The approach taken in Stingel has been approved in Masciantonio v The Queen (1995) 183 CLR 58 and Green v The Queen (1997) 191 CLR 334.64 The accused’s appeal in Stingel was ultimately dismissed and his conviction for murder affirmed, with the High Court holding (at 336–7) that ‘no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant’s reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to any hypothetical ordinary nineteen year old’.

In its recent decision in Lindsay v The Queen (2015) 89 ALJR 518, the High Court articulated the role of trial judges and appellate courts in establishing the minimum standard of self-control expected of an accused before the provocation defence is available.

A CASE TO REMEMBER Lindsay v The Queen (2015) 89 ALJR 518 The appellant was charged with murder in relation to the killing of Mr Andrew Negre. The appellant and some friends encountered Mr Negre at a tavern south of Adelaide. Although they had not previously met, Mr Negre drank with the appellant and his friends at the tavern before accompanying the group to the appellant’s house; other members of the appellant’s family were also present at the house. While at the house, Mr Negre acted in a sexually suggestive manner towards the appellant, and later offered to pay him for sex. The appellant then punched, kicked and stabbed Mr Negre, causing fatal injuries. The provocation defence was left to the jury at the appellant’s trial, where he was nevertheless found guilty of murder. The appellant appealed to the South Australian Court of Criminal Appeal; although the majority found the trial judge’s directions on provocation were flawed, the appeal was dismissed. In the leading judgment in the SACCA, Peek J found, after ‘careful consideration of the authorities, and of some of the extensive academic

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literature’, that provocation should not have been left to the jury because no reasonable jury could have found that a homosexual advance could cause the ordinary person to lose self-control and kill the victim.65 The appellant then appealed to the High Court, who unanimously (5:0) held that the defence should have been left to the jury; French CJ, Kiefel, Bell and Keane JJ found (at 528): The capacity of the evidence to support a conclusion that the prosecution might fail to negative the objective limb of the partial defence did not turn upon the appellate court’s assessment of attitudes to homosexuality in 21st century Australia. It was open, as the appellant submits, for the jury to consider that the sting of the provocation lay in the suggestion that, despite his earlier firm rejection of the deceased’s advance, the appellant was so lacking in integrity that he would have sex with the deceased in the presence of his family in his own home in return for money. (emphasis added)66

The joint judgment went on to find that Peek J’s approach had involved an assessment of how the ordinary person would respond to provocation, which was a matter properly for jury determination. The High Court therefore quashed the appellant’s conviction and ordered a retrial.

Accordingly, the objective test for provocation at common law can be summarised as follows: (1) The gravity of the provocative conduct must be assessed by reference to the relevant characteristics of the accused apart from their state of intoxication and be put into context. Is it minimally, moderately, highly, seriously, or extremely provocative for a particular accused? (2) Could provocation of that particular gravity cause an ordinary person with ordinary powers of self-control, who may be taken to be the accused’s age because of immaturity where appropriate, to lose self-control and act in the manner the accused did? Thus, the personal attributes of the accused (apart from age) are not relevant to the ultimate question posed by the objective test. The two parts of the objective test are controversial. Some judges have argued that it is difficult to expect that juries will understand that they can consider the accused’s characteristics in assessing the gravity of the provocation, but disregard the same characteristics in assessing whether an ordinary person in the same situation could have lost self-control.67 This concern regarding the complexity of the task faced by juries in applying the two-part approach was cited as one reason for reforming this aspect of the provocation defence in New South Wales.68 In New South Wales, the third aspect of the provocation defence now involves a purely objective inquiry that asks whether ‘the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased’.69 This means that, with the exception of the accused’s age (as per the High Court’s decision in Stingel v The Queen (1990) 171 CLR 312), the personal characteristics of the accused are not relevant

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to the application of this aspect of the provocation defence in New South Wales. 70 It remains to be seen whether this new approach to the third aspect of the defence will achieve the policy objectives underpinning the reformulation of the provocation defence in New South Wales.71

DURESS AND NECESSITY The defences of duress and necessity, also called ‘duress of circumstances’, are sometimes referred to as defences of ‘compulsion’ or defences ‘based on external pressure’. It is now generally accepted that a successful duress or necessity defence does not negate the physical or mental elements of an offence, but recognises that, in circumstances such as a sudden or extraordinary emergency or in the face of threats of serious harm, the commission of an offence is the lesser of two evils and the criminal conduct is excused. In Palazoff v R (1986) 43 SASR 99, a case where the accused claimed he had been forced to assist in the cultivation of cannabis due to threats to his family, Cox J explained that the defence did not seek to establish that the actions of the accused were unwilled or involuntary but truly ‘undesired’. As with self-defence and provocation, the accused has an evidential burden to raise the possibility of circumstances amounting to duress or necessity. If sufficient evidence is raised, the prosecution bears the persuasive burden of negating the defence.72 In New South Wales and South Australia, both defences are defined at common law. Sections 322O (duress) and 322R (sudden and extraordinary emergency) of the Crimes Act 1958 (Vic) have codified the defences in Victoria. While the two defences are similar, having once been described as ‘closely related cousin[s]’,73 duress only arises in circumstances where the will of the accused has been overborne by threats of violence from another person. Necessity, on the other hand, can arise in a range of different circumstances, human or natural, where the accused or another person is placed in a situation of imminent peril or sudden emergency. Therefore, the potential for overlap is apparent and sometimes an accused may raise both duress and necessity.74

DURESS There are three fundamental legal requirements of the defence of duress at common law (as established in the cases of R v Hurley and Murray [1967] VR 526 and R v Lawrence [1980] 1 NSWLR 122): (1) There is a threat of death or grievous bodily harm to the accused or another. (2) The accused’s will to resist the threat is overborne and the crime is committed during this time. (3) The threat must have been such that the ordinary person in the same position as the accused would have yielded to the threat and committed the crime.

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The contemporary legislative formulation of the defence in Crimes Act 1958 (Vic) s 322O(2) is to substantially the same effect in providing that: (2) A person carries out conduct under duress if— (a) the person reasonably believes that (i) subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and (ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and (b) the conduct is a reasonable response to the threat. (3) A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.

Briefly amplifying these legal requirements, it is apparent that there must be an express or implied threat75 to harm the accused or another person. At common law, the threat must be of some sort of physical harm76 and the defence is usually founded on an accused’s response to a threat to kill or to inflict serious bodily injury. It is not sufficient if property is threatened or if the accused is being ‘blackmailed’. The legislative formulation departs from the common law position in two key respects. First, s 322O(2)(a)(i) refers only to a ‘threat of harm’, which may not be limited to harm of the seriousness contemplated at common law and would therefore allow a wider operation than the common law defence. Second, the legislative formulation introduces an objective inquiry to this aspect of the defence by requiring that the accused reasonably believe a threat of harm has been made and that the threat will be carried out. Although some cases have suggested that the threats must be directed at the accused, or the accused’s family, there is generally no specific limitation on what class of people must be threatened. 77 A threat that is continuing and ongoing as to future conduct has been held to be sufficient.78 As to the common law subjective test, the accused’s will is overborne when they genuinely believe that the threat will be carried out and that is why they commit the offence. Therefore, the prosecution must disprove that the accused genuinely believed the threat would be carried out, involving ‘a subjective test which is relatively easy to assert yet difficult to disprove’.79 Further, this requirement suggests that there must be a specific causal connection between the threat and the offence charged. For example in R v Dawson [1978] VR 536, an accused escaped from a prison and attempted to argue duress, claiming that he had heard of threats that he would soon be stabbed and killed. Evidence suggested that he had been attacked in prison before and he was suffering from a psychiatric paranoia. In holding that the defence of duress was not available in these circumstances, Anderson J stated that the party making the threats must nominate

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the offence to be committed in order to avoid the threats being carried out. In this case no threats had been made directly to the accused and, if made, they were not made on the basis that the accused must commit an offence to avoid them; the accused had simply chosen his course of action to avoid the threat. The legislative formulation of this part of the test is slightly different as there must be a ‘reasonable’ belief by the accused that the only reasonable way that the threat can be avoided is to commit the offence. The use of ‘reasonable’ in this context imports a partially objective standard. Moving to the third common law requirement, the prosecution must disprove the reasonable possibility that an ordinary person in the same position as the accused would have yielded to the threat and acted as the accused did. This is an objective test but contextualised by reference to the circumstances of the accused. The legislative formulation of this requirement—that ‘the conduct is a reasonable response to the threat’—imports the same contextualised objective test. In assessing the reaction of the ordinary person to the threat, the New South Wales courts have held that only the sex and age of the accused will be attributed to the ordinary person.80 There is authority in South Australia that suggests that other characteristics of the accused, with the possible exception of their strength of will, can be attributed to the ordinary person.81 This same authority indicates that the test of whether an ordinary person could or might have yielded to the threat is sufficient 82 rather than the more stringent standard of ‘would’ applied in New South Wales.83 The increased emphasis on objectivity in relation to this defence in Victoria may mean that a more restrictive approach to attributing characteristics of the accused to the ordinary person will also be adopted in that jurisdiction.84 An important factual consideration in deciding whether the prosecution can disprove the defence of duress either on the basis of the accused’s subjective belief or the objective test of whether an ordinary person would have yielded to the threat and committed the offence is whether there was a reasonable opportunity for the accused to escape the threat and to reassert their will. The ordinary way in which an accused would avoid a threat is informing the relevant law-enforcement authorities of the threat.85 In some circumstances, however, an opportunity to go to the police, or an opportunity when the accused is not in the presence of the party making the threats,86 will not amount to opportunities for the accused to avoid the threats and reassert their will. This is particularly the case when the threats involve later harm to the accused or their family,87 even after the offence has been committed.88 Depending on the particular circumstances, there may well be a question as to whether the accused would be adequately protected by informing the authorities.89

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A CASE TO REMEMBER Taiapa v The Queen (2009) 240 CLR 95 The appellant was convicted at trial of trafficking and possessing prohibited drugs. 90 Police intercepted the appellant and two accomplices in northern Queensland; a search of their vehicle revealed more than 350 grams of methylamphetamine. Before transporting the drugs, the appellant had been confronted by two men (Tony and Salvatore) to whom he owed a ‘drug debt’; at first the two men demanded that the appellant repay the debt and threatened to harm his pregnant de facto wife if he contacted authorities. When the appellant could not satisfy the debt in full, Tony and Salvatore demanded he travel to New South Wales and transport the methylamphetamine into Queensland. Tony and Salvatore made clear that the appellant, his de facto wife or his mother would ‘pay for it’ if he contacted authorities. The appellant argued that he was not responsible for his actions in transporting the drugs because he acted under compulsion.91 The appellant did not contact authorities before he was detected and arrested in northern Queensland, but argued that he could not adequately identify Tony and Salvatore and that he did not ‘believe … police protection was “100 per cent safe”’. The High Court found that the appellant had ‘ample opportunity to seek the assistance of police’, and that there was no evidence to support an argument that he had no option other than to transport the drugs (at 109): The applicant’s belief that police protection may not be 100 per cent safe provided no basis for a reasoned conclusion that it was not. It may explain the applicant’s preference for complying with the unlawful demands. However, an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat.

At common law it is generally accepted that duress cannot be a defence to a charge of murder. The rationale for this approach is, simply, that whatever the nature of the threat to the accused or another it is never excusable for a person of ordinary firmness to take an innocent life to preserve their own or another’s life. 92 This position has been changed in Victoria as Crimes Act 1958 (Vic) s 322O(4) provides that duress ‘only applies in the case of murder if the threat is to inflict death or really serious injury’, so the accused must be faced with a genuine threat to their own or another person’s life before the commission of a ‘murder’ can be excused on the basis of duress.

NECESSITY As is the case for duress, there are three fundamental legal requirements of the defence of necessity at common law in New South Wales and South Australia. The leading statement of these requirements from R v Loughnan [1981] VR 443 can be summarised as follows: (1) The offence must have been committed to avoid irreparable evil while the ­accused was in a situation of imminent peril.

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(2) The accused must honestly believe on reasonable grounds that they were in a situation of imminent peril and that irreparable evil would result if the offence was not committed. (3) The ordinary person in the position of the accused would have reacted as the accused did to avoid the situation of imminent peril. The legislative formulation of the defence is styled ‘sudden or extraordinary emergency’ in Crimes Act 1958 (Vic) s 322R(2) and provides: (2) This section applies if— (a) the person reasonably believes that— (i) circumstances of sudden or extraordinary emergency exist; and (ii) the conduct is the only reasonable way to deal with the emergency; and (b) the conduct is a reasonable response to the emergency.

First, there must be a situation of peril or emergency that is so imminent that the accused is compelled to commit an offence in order to avoid or deal with that situation. A threat of death or serious injury has been held to be sufficient, thus illustrating the overlap with duress.93 There is, however, much broader scope in considering circumstances of peril and sudden or extraordinary emergency. Cases of successful necessity defences include where an accused breached the road rules to obtain urgent medical assistance,94 where a life-saving operation was required to save the life of a conjoined twin with the result that the other would die, 95 and terminating a pregnancy when proceeding with it would pose a serious danger to the physical or mental health of the pregnant female.96 By way of contrast, financial hardship has been found not to meet the ‘high test’ of the defence. 97 ‘If there is an interval of time between the threat and its expected execution it will very rarely, if ever be that a defence of necessity will succeed.’ 98 Cases in which protesters have committed offences when attempting to oppose nuclear armament 99 or military alliances100 provide examples of unsuccessful necessity defences as there was no situation of imminent peril. Second, as with duress and self-defence, the accused must subjectively believe in the existence of the situation of imminent peril or emergency. In contrast, however, the test for ‘necessity’ imports an objective aspect as the subjective belief must be held by the accused on reasonable grounds. Therefore the honest belief of the accused that they were in a situation of imminent peril and irreparable evil would result if they did not commit the offence must be examined from the perspective of the ordinary person in the position of the accused to determine whether there were reasonable grounds for the accused holding that belief. The legislative formulation in Crimes Act 1958 (Vic) s 322R(2)(a)(ii) requires that the accused reasonably believes that their conduct is the only reasonable way to deal with the emergency, thus importing a mixed subjective and objective test for this requirement, which operates in substantially the same way as the common law.

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The third requirement is objective in that the reaction of the accused to the situation of peril or emergency is measured against what an ordinary person would have done in the same circumstances. The legislative formulation in Crimes Act 1958 (Vic) s 322R(2)(b) is that the section applies if ‘the conduct is a reasonable response to the emergency’, which imposes an objective standard on the accused’s response to the emergency. Both at common law and under s 322R(2)(b), the objective tests are contextualised within the actual situation of peril or emergency in which the accused reacted. Although there is no authoritative statement on what attributes the ordinary person has, one can argue strongly that ‘given the similar underlying thread between duress and necessity … the ordinary person will only be attributed with [the accused’s] age and sex’.101 Important factual considerations in applying the defence of necessity are the proportionality of the accused’s conduct to the danger or emergency situation that is to be avoided, and whether any possible alternative courses of action were open to the accused. If there are alternatives that do not involve the commission of the offence charged, or that involve commission of a lesser offence, the prosecution would probably be able to negate the defence as not being a reasonable response. Thus in R v Rogers, R v Loughnan and R v Mattar [2012] NSWCCA 98, the accused prison escapees were unsuccessful in arguing necessity. In Rogers, where the escape attempt was unsuccessful, the court found that the accused had not sought the protection of prison officers before making the decision to escape. In Loughnan, where the escape was successful, the court held that once the accused had escaped from the division of the prison in which the threats had been made, there was ‘no need for him to go further’ as he could then have reported the threats and been placed in another part of the prison. In Mattar, where the escape was successful, the court found that the defence was not available where the accused had rejected offers from prison authorities to enter protective custody or transfer to another prison. This can be contrasted with R v White (1987) 9 NSWLR 427, where an accused had been convicted of speeding while taking his chronically asthmatic son to a doctor. On appeal to the District Court, Shadbolt DCJ compared the offence of speeding with the possibility of the death of the accused’s son and held that the prosecution could not negative the defence of necessity. It was established at common law in R v Dudley and Stephens (1884) 14 QBD 273 that necessity is not available as a defence to a charge of murder. The court recognised the principle of equality of human life and that necessity did not provide a defence to an accused who had killed another in order to save themselves. Subsequent developments at common law and in statute have allowed some scope for raising the defence to a murder charge. In Re A (Children) [2001] All ER (D) 1700, the United Kingdom Court of Appeal ruled in applying the defence of necessity and

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distinguishing the circumstances from R v Dudley and Stephens that doctors had a right to perform an operation to separate conjoined twins even though the operation was sure to result in the death of one twin. Under s 322R(3) of the Crimes Act 1958 (Vic), necessity can only be raised as a defence to murder if the person believes that the emergency involves a risk of death or really serious injury.

FITNESS TO BE TRIED The first issue to be determined when an accused, who may have some type of impairment, is charged with an offence is whether they are in a condition to articulate their defence and participate in their trial.

IN WHAT CIRCUMSTANCES IS AN ACCUSED CONSIDERED UNFIT TO BE TRIED? In Victoria and South Australia these circumstances are defined in legislation, whereas in New South Wales the common law applies. The common requirements establishing minimum standards are summarised below and are drawn from Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6, Criminal Law Consolidation Act 1935 (SA) s 269H, Presser v R [1958] VR 45 and Kesavarajah v R (1994) 181 CLR 230: •• The accused must be able to understand and respond rationally to the charge, including entering a plea and giving necessary instructions. •• The accused must be able to exercise procedural rights or give instructions about the exercise of those rights (for example, the right to challenge jurors). •• The accused must be capable of understanding the nature of the proceedings— that it is an inquiry into whether they committed the offence. •• The accused must be capable of following the course of the proceedings in a general sense for the anticipated length of the trial, including the effect of the evidence given. An accused’s fitness to be tried is to be determined at the time of hearing irrespective of their mental state at the time of the commission of the offence. Accordingly, a loss of memory about the incident for which they are to be tried does not mean the accused is unfit for trial.102 Otherwise, a range of conditions, including physical illnesses such as heart disease or stroke,103 developmental or intellectual disability104 and mental illness may result in an accused being found unfit to be tried if they are unable to communicate and participate in the trial to the minimum standard required. A condition that reduces an accused’s capacity to communicate, instruct, understand or follow the proceedings is not sufficient if the minimum standards for a fair trial can still be met.105

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WHAT ARE THE PROCEDURES FOR DETERMINING AN ACCUSED’S FITNESS TO BE TRIED? In each jurisdiction, the presumption is that an accused is fit to be tried, 106 but a question of fitness may be raised at any time by either party or by the court. 107 Once the issue has been raised, the court may order an investigation or inquiry into the accused’s fitness to be tried. There are detailed statutory provisions in each jurisdiction that govern the procedures for an investigation or inquiry into an accused’s fitness to be tried.

NEW SOUTH WALES The relevant legislation is the Mental Health (Forensic Provisions) Act 1990 (NSW) and the essential aspects are: •• A fitness inquiry is conducted by a judge alone (s 11). It is not conducted in an adversarial manner and the onus of proof is not on any party (s 12(2)–(3)). The issue is determined on the balance of probabilities (s 6). •• If the inquiry finds that the accused is not fit to be tried, the court must refer the accused to the Mental Health Review Tribunal (MHRT) (s 14). •• If the MHRT finds that the accused will become fit to be tried within twelve months, it must notify the court of this finding and make a recommendation in relation to the care and treatment of the accused for that twelve month period (s 16(1)–(3A)). •• If the MHRT finds that the accused will not become fit within twelve months, it must notify the Director of Public Prosecutions (DPP), who will then advise the court whether to hold a special hearing (ss 16(4), 19(1)). Throughout the process the court can make a range of orders in respect of the custody and treatment of the accused, such as bail, conditional release or detention in a range of different institutions (ss 14(b), 17(3)).108

VICTORIA The investigation under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) is held before a jury specifically empanelled for the determination of fitness (s 7(3)(b)). The party that raised the question of fitness bears the onus of proof on the balance of probabilities, though no party does if the issue was raised by the court (ss 7(4)–(5), 11). The court then makes a finding as to whether the accused is likely to be fit to be tried within twelve months. If it is found that the accused is likely to be fit within twelve months, the court has the power to adjourn the proceedings and make a range of orders in respect of the custody and treatment of the accused for a period of up to twelve months (s 12(2)(a)–(d)).109 If the defendant is found unlikely to be fit within twelve months, or if the adjournment period ends and the accused is not fit to

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be tried, the court must proceed with a special hearing (ss 12(5), 14). Victoria and New South Wales have provisions for a ‘special hearing’ when an accused has been found unfit to be tried. Essentially, the special hearing is to be conducted in a manner that mirrors an ordinary criminal trial. It is held to determine, despite the accused being unfit to be tried, whether they committed the conduct elements of the offence and what their mental state was at the time of the offence. The judge must explain to the jury the reasons for the special hearing, the verdicts that are available and the practical consequences of those verdicts. 110 The jury can find the accused not guilty, guilty of an alternative offence, guilty of the offence charged or not guilty due to mental illness or impairment.

SOUTH AUSTRALIA The entire process under Criminal Law Consolidation Act 1935 (SA) Part 8A Div 3 is more straightforward. The question of fitness may be raised on application by either party or on the judge’s own initiative under s 269J. Before the court embarks on a formal investigation of the accused’s fitness, a court may make a ‘preliminary prognosis’ by examining existing psychiatric and medical reports, and commissioning new reports if warranted. If the accused is judged unfit at this preliminary stage— but there are still reasonable prospects that their condition will improve—the court may adjourn the matter for up to twelve months (s 269K). The determination of fitness becomes part of the trial for the offence, though the court can order that it be tried separately (s 269L). At the hearing the jury will determine whether the accused is fit to be tried on the balance of probabilities, and it will also determine whether the objective (physical) elements of the offence have been established beyond reasonable doubt (ss 269M, 269N). If the physical elements of the offence are established but the accused is found unfit to stand trial, they become liable to supervision under Criminal Law Consolidation Act 1935 (SA) Part 8A Div 4, with the same effect as if they had been found not guilty on the grounds of mental impairment.

THE MENTAL STATE DEFENCES MENTAL ILLNESS OR MENTAL IMPAIRMENT The defence of mental illness (New South Wales) or mental impairment (South Australia and Victoria) relates to the accused’s mental state at the time of the commission of the offence. It is a general defence that can be raised in relation to any criminal offence. As an accused is presumed to be sane or mentally competent, 111 the persuasive burden is on the accused to establish on the balance of probabilities that they were mentally ill or impaired at the time of the offence. If successful the result is a qualified acquittal: ‘not guilty on the grounds of mental illness or

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mental impairment’.112 Depending on the jurisdiction, the supervision of a person found not guilty on this basis can range from conditional release and ongoing treatment to detention in a mental health facility or a dedicated section of a correctional facility, in some circumstances for an indeterminate period. 113 The defence of ‘mental illness’ is still defined at common law in New South Wales, while in South Australia and Victoria it has been replaced with statutory formulations of ‘mental impairment’ that retain similar elements to the common law definition as set out in Table 11.3.

TABLE 11.3 The defences of mental illness or mental impairment in the common law ­jurisdictions

Definition of the defence

New South Wales

Victoria

South Australia

Common law— M’Naghten’s Case (1843) 8 ER 718 at 722

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20

Criminal Law Consolidation Act 1935 (SA) s 269C

Defence of mental impairment— (1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that— (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

Mental competence— A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—

‘At the time of the committing of the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong.’114

(a) does not know the nature and quality of the conduct; or (b) does not know that the conduct is wrong; or (c) is unable to control the conduct.

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As the common law established the basis for this mental state defence we shall now briefly consider each of the common law elements and examine how they relate to the statutory defences in South Australia and Victoria.

Disease of the mind/mental impairment At common law a disease of the mind is generally regarded as synonymous with ‘mental illness’.115 In South Australia and Victoria, the term is no longer used; instead, their equivalent element is a ‘mental impairment’. The non-exhaustive definition of ‘mental impairment’ in Criminal Law Consolidation Act 1935 (SA) s 269A includes a ‘mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility’. In Victoria, the term ‘mental impairment’ is not defined in the legislation and, while the common law has been abolished,116 ‘mental impairment’ has been held by courts in this jurisdiction to substantially incorporate the common law test of disease of the mind.117 For the purpose of the defence at common law, if the condition of the accused results from an ‘underlying pathological infirmity of the mind’ 118 their condition can be equated with a disease of the mind. The purpose of this test is to differentiate those whose mental state is caused by an internal infirmity as opposed to the reaction of an ‘ordinary’ mind to ‘external stimuli’, such as traumatic or unexpected events.119 What, then, are the types of internal or underlying conditions that can be classified as a disease of the mind or mental impairment? It is generally accepted that recognised mental conditions such as psychosis, paranoia or schizophrenia, 120 a manic state brought about by clinical depression,121 dementia,122 and intellectual disabilities are all capable of being classified as diseases of the mind or mental impairments, as is ‘any mental disorder which manifests itself in violence and is prone to re-occur’.123 The condition may be organic rather than functional, such as a brain tumour, arteriosclerosis, diabetes124 or epilepsy,125 as long as it impairs the mind of the accused—that is, produces a cognitive impairment. It is important to note that ‘disease of the mind’ is a legal, not a medical, term. Although medical evidence will often be vital in determining whether the accused has a disease of the mind or mental impairment, the diagnosis of a medical condition, even a recognised mental illness such as depression, does not mean that the accused is legally suffering from a disease of the mind or mental impairment. 126 The disease of the mind need not be permanent or incurable; it is sufficient if the accused was suffering it at the time of the offence.127 For example, it can be a condition which is transient in that it ‘comes and goes’.

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A CASE TO REMEMBER Porter v The Queen (1933) 55 CLR 182 The accused experienced a nervous breakdown after an emotional separation from his wife. The accused’s wife informed police that the accused had threatened to kill himself and their infant son. When police arrived at the accused’s residence, they found he had poisoned his son with strychnine and was about to take poison himself. In summing up at the accused’s murder trial, Dixon J (at 188) drew a distinction between a ‘peculiar temperament’, possibly consisting of ‘excitability, passion, stupidity, obtuseness lack of self control and impulsiveness’, which was not capable of satisfying the defence and ‘a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing’ which, if it existed was ‘of such a character as to prevent him from knowing the physical nature of the act he was doing or that what he was doing was wrong’.

One key distinction is that between a person suffering a mental illness and a person suffering from a personality disorder. A personality disorder is where an individual has unusual or extreme degrees of normal human characteristics such as suspicion, selfishness or aggressiveness. These traits will often lead such a person into conflict with the law as they may display a complete disregard for the feelings or rights of others, or for the normal laws and standards of the community due to their high levels of aggression or irresponsibility or low tolerance for frustration. These are parts of a person’s personality and are difficult to change through medical intervention. This is different from a mental illness where symptoms represent a disruption to the normal modes of psychological function. Therefore, someone with a personality disorder is not regarded as suffering from a disease of the mind or a mental impairment for the purpose of the defence. This is also clear from the definition of ‘mental impairment’ in Criminal Law Consolidation Act 1935 (SA) s 269A, which was based on the Commonwealth Criminal Code definition but, unlike that definition, has omitted reference to ‘severe personality disorders’.

Defect of reason The disease of the mind must cause a ‘defect of reason’ at common law although there is no specific equivalent in the Victorian and South Australian legislation. In practice this requirement merges with the element relating to the accused’s knowledge about what they were doing as it involves some sort of disordered thinking and an inability to reason about acts in a rational way.128 Therefore, it is more appropriate to consider the accused’s capacity to reason in the context of whether they knew their actions were wrong.129

Did not know the nature and quality of the act This element of the test refers to the accused’s knowledge of the physical nature of the acts they are committing. In Porter, Dixon J gave (at 188) the example that a

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person may not know the nature and quality of their actions when they intentionally destroy human life and consider it to be ‘no more than breaking a twig or destroying an inanimate object. In such a case he would not know the implications and what it really amounted to … he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life’. There are some cases where it has been held that an accused can fall within this element of the defence when they know the physical nature of the act but not its consequences (for example, when they kill believing their victim will be granted everlasting life130 or under a delusion that they are an actor in a movie131).

Did not know that what they were doing was wrong Most cases are concerned with whether the accused knew that what they were doing was wrong. In Porter, Dixon J stated (at 189–90) that the question is one of whether the disease or disorder produces a state in which the accused could not rationally think of the reasons which, to ordinary persons, make the act right or wrong. It must prevent the accused’s ability to ‘reason about the matter with a moderate degree of sense and composure’. The persuasiveness of Dixon J’s directions are demonstrated by the fact that recent cases continue to cite his Honour’s formulations with approval132 and by the fact that they have been incorporated into Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(1)(b). It was authoritatively established in Porter (at 190) that the word ‘wrong’ in the test means ‘wrong having regard to the everyday standards of reasonable people’ in the community.133 Although some English authority has suggested that the accused must know their actions are wrong at law,134 the Australian High Court has not followed this approach and has stated that the distinction may produce anomalous results. For example, an accused may, due to mental illness or impairment, believe they are justified in killing someone they believe intends to harm them but, despite not being able to reason that their actions are morally wrong, may have some understanding that they will be punished. This reasoning explains cases in which an accused is found not guilty due to mental illness or impairment despite the fact that they have subsequently taken steps to conceal their offence.135 Finally, it is clear that the High Court in Willgoss v R (1960) 105 CLR 295 established that the knowledge required consists only of an intellectual appreciation of the wrongness of what the accused was doing. In this case, the accused, who had been diagnosed as a ‘gross psychopath’, attempted to argue that he may have ‘known’ his actions were wrong at an intellectual level but he did not ‘know’ or appreciate why they were wrong on a moral level (for example, by not considering what effect the actions would have or why ordinary people would consider them wrong). The High Court rejected that argument and found that it

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is unnecessary for an accused to know why an action is wrong, or to care that it is wrong, if they are intellectually aware that it would be regarded as wrong by ordinary people. A related area is that of ‘uncontrollable or irresistible’ urges. As a simple example consider a kleptomaniac or a compulsive gambler who feels an uncontrollable urge to steal despite knowing the nature and quality of their act and knowing it is wrong by the standards of ordinary people. At common law an irresistible impulse is not, without more, sufficient to ground a defence of mental illness or mental impairment. The focus of the rules in M’Naghten and Porter is on the accused’s capacity to understand their actions, not whether they could control them—that is, cognition as opposed to volition. Therefore, the defence is not generally available to those with ‘mere’ personality or impulse-control disorders. In some cases, however, it has been held that an inability to control one’s actions may afford a strong inference that the impulse is a symptom of a condition whereby an accused did not know that what they were doing was wrong.136 The situation is different in South Australia, where there is another element to the defence in addition to the standard M’Naghten rule requirements—namely, that as a consequence of the mental impairment the accused ‘is unable to control the conduct’. While there are few cases dealing solely with this element, it is more likely to be found when an accused is suffering from a serious impairment that damages their cognitive function. For example, in R v Berlingo [2003] SASC 109 an elderly accused who was suffering from dementia brutally strangled his wife to death. There was evidence from the accused’s children that the accused and his wife had been a devoted couple over many years and that the accused was a quiet, loving and peaceful man. The accused was found not guilty on the basis that his dementia had resulted in an inability to control his conduct. When the impairment alleged falls more appropriately into the category of an addiction or personality or impulse control disorder, courts will be more circumspect. For example, in R v Telford [2005] SASC 349 an accused, after being charged with various thefts from his employer, sought unsuccessfully to argue mental impairment on the basis that a gambling addiction left him unable to control his behaviour.

SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND This brings us to the defence of substantial impairment by abnormality of mind (formerly known as ‘diminished responsibility’), which is a statutory defence only available in New South Wales. It is a defence created largely in response to concerns about the narrow operation of the common law ‘mental illness’ defence. It is a partial defence restricted to the crime of murder and is set out in s 23A of the Crimes Act 1900 (NSW):

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23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

In what follows, the key elements of this defence, which must be proved by the accused on the balance of probabilities (s 23A(4)), are emphasised. First, there must be an abnormality of mind. This phrase has been held to encompass a broader range of mental conditions than those covered by the M’Naghten rules at common law. 137 Accordingly, an accused can raise the s 23A defence when they are suffering from a condition, or from a combination of conditions, that do not amount to a mental illness or a disease of the mind. The defence has been successfully raised by an accused suffering from severe or chronic depression138 (though this is to be contrasted with merely a ‘state of distress’ or ‘severe unhappiness’139), psychopathy or a personality disorder,140 post-traumatic stress disorder,141 or some form of cognitive impairment related to physical conditions such as diabetes,142 or frontal lobe damage probably resulting from the effects of unmedicated epilepsy.143 Second, the abnormality of mind must arise from an ‘underlying condition’. This phrase is defined in s 23A(8) to mean a ‘pre-existing mental or physiological condition, other than a condition of a transitory kind’.144 This is intended to distinguish the defence from a temporary disturbance brought about by heightened emotions such as anger or jealousy. There does not need to be a precise identification of the cause of the abnormality of mind, but the fact that the accused has such an underlying condition must be supported by expert evidence.145 Although the underlying condition need not be permanent or incurable, an internal condition with some element of permanence must contribute to the abnormality. The abnormality can be triggered or exacerbated by an external event or circumstance as long as the underlying condition causes the abnormality. For example, an offence may be triggered by an underlying condition when a prisoner with an antisocial personality disorder that involves a fascination with knives is given a knife in a cooking class 146 or a victim of sexual assault who has post-traumatic stress disorder may have their condition exacerbated by chance meetings with the offender.147 The effects of self-induced intoxication are to be disregarded in determining if an accused was substantially impaired for the purposes of the defence (s 23A(3)).

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The long-term effects of drug or alcohol abuse, however, may be relevant if they are the cause of, or have exacerbated, an underlying condition, such as severe depression.148 Third, the accused must prove that their capacity to understand events, to judge whether their actions were right or wrong, or to control themselves was substantially impaired by an abnormality of mind. The focus of this requirement is on the factfinder, usually the jury, making an assessment as to whether the impairment was of such a degree to warrant liability for murder being reduced to manslaughter under s 23A(1)(b). Significantly, evidence of an opinion relating to this requirement is inadmissible (s 23A(2)). There is a clear emphasis on the role of the jury in applying everyday community standards in relation to the defence, based on the evidence of the accused’s abnormality and underlying condition and what effect it may have had at the time of the killing. The jury may consider the degree of alleged impairment in relation to the nature of the killing, the conduct of the accused before, during and after the killing and any history of mental abnormality. For example, careful preparation and any precautions taken in relation to a killing may be evidence that the accused is not impaired in relation to their capacity to understand events, judge right from wrong, or control themselves.149

AUTOMATISM Unlike the other mental state defences, it may be somewhat of a misnomer to think of automatism as a defence; it is rather a means by which an accused can argue they have not committed the conduct elements (actus reus) of an offence and are therefore entitled to an unqualified acquittal. Automatism arises where a person’s consciousness is impaired so that it disrupts the connection between the accused’s mind and their actions. It operates to rebut the presumption that the actions of an accused are willed or voluntary and the prosecution must disprove automatism by establishing that the accused’s acts were voluntary.150 Further, a successful defence of automatism results in an unqualified acquittal rather than continued detention or supervision. A distinction must be made between ‘sane’ and ‘insane’ automatism. At common law this distinction has been described as ‘the reaction of an unsound mind to its own delusions or to external stimuli on the one hand [the insane automatism] and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand [the sane automatism]’.151 Accordingly, sane automatism is where the accused’s lack of will to act results from a temporary external trauma rather than a mental condition that is internal and particular to the accused. Insane automatism, where the accused has a disease of the mind or mental impairment, is subsumed within the mental illness or mental impairment defence and follows the law and procedures for that defence as considered earlier in this chapter.

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A CASE TO REMEMBER The Queen v Falconer (1990) 171 CLR 30 The accused was convicted of fatally shooting her husband. Evidence established that the marriage had been violent and that the accused had recently discovered that the deceased had been sexually assaulting their daughters. When the deceased unexpectedly arrived at the house one evening, a confrontation took place during which the deceased taunted and attempted to sexually assault the accused. The accused gave evidence that she then ‘blacked out’ and remembered nothing until she found herself on the floor with the gun after the shooting. Psychiatric evidence that the accused was in a ‘dissociative state’ at the time of the shooting was excluded at trial and the accused was convicted of murder. Ultimately, the High Court ruled that the psychiatric evidence was admissible and found that the shock of being assaulted and taunted by her husband, in addition to the recent revelations of sexual abuse in their family, could have led to the accused killing her husband in a state of automatism when she was sane but not consciously aware of what she was doing. The requirements for sane automatism as distinguished from insane automatism were stated by Mason CJ, Brennan and McHugh JJ at 56: When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was (1) transient (2) caused by trauma, whether physical or psychological which the mind of an ordinary person would be likely not to have withstood and (3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity. (emphasis added)

Briefly considering the requirements for sane automatism emphasised above, a transient malfunction that is not prone to recur is one that cannot be attributed to a more permanent mental or other condition of the accused, such as epilepsy, 152 diabetes resulting in hypoglycaemia153 or somnambulism (sleepwalking). The external cause that the mind of an ordinary person would be likely not to have withstood may be physical (for example, when an accused has been concussed).154 Alternatively, the cause may be psychological (for example, where individuals have been exposed to unusually disturbing situations, such as war or torture, that may have made them more susceptible to certain types of external stresses155 even though they do not suffer from any specific ongoing mental condition). While the courts will not generally accept that ‘commonplace emotions’,156 such as those arising from a confession of infidelity or a relationship breakup,157 will constitute a ‘psychological blow’ sufficient to cause an ordinary mind to enter a state of automatism, there have been occasions where an accused has been acquitted of killing their former partner in such circumstances.158 The psychological cause may be found where the accused was in a dissociative state—namely, where there is expert psychiatric evidence that an accused’s integrated functions of consciousness, memory, identity or perception of the environment were disrupted to the extent that they literally did not know what

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they were doing at the time. Such a state can result from an underlying condition or from extremely traumatic physical or psychological ‘blows’.159 There has been some controversy over the disparity of expert opinion on dissociative states, 160 with the fear that sane automatism may be used as a more powerful form of ‘de facto provocation’ defence where inconsistent expert evidence might confuse the fact-finder and result in unmeritorious acquittals.

Important references For more extensive coverage of the law relating to the various defences covered in this chapter, you should consult the following textbooks. Kenneth Arenson, Mirko Bagaric and, Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions (4th edn, 2014) Chapter 4 ‘Murder: The Doctrines of Provocation and Self-defence’ 133–229, Chapter 14 ‘The Defences of Compulsion: Duress and Necessity’ 658–90 and Chapter 15 ‘Mental State Defences: Intoxication, Insanity and Diminished Responsibility’ 691–744. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd edn, 2010) ­Chapter 4 ‘Mental State Defences’ 237–91, Chapter 5 ‘Partial Defences’ 293–331 and Chapter 6 ‘Self-Help Defences’ 333–78. David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 10 ‘Defences’ 829–956. David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire ­Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (2014) Chapter 10 ‘Self Defence’ 323–45, Chapter 11 ‘Duress and Necessity’ 347–67 and Chapter 13 ‘Mental Impairment’ 389–420. Michael Eburn, Roderick Howie and Paul Sattler, Hayes & Eburn Criminal Law and ­Procedure in New South Wales (4th edn, 2014) Chapter 3 ‘Voluntary Manslaughter’ 122–62, Chapter 8 ‘Insanity, Voluntariness, Automatism and Intoxication’ 356–420 and Chapter 9 ‘Duress, Necessity and Self-defence’ 421–65. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws—Critical Perspectives (2004) Chapter 10 ‘Self-defence and Provocation’ 469–501, Chapter 11 ‘Mental State Defences’ 502–52 and Chapter 12 ‘Defences Based on External Pressures’ 553–82.

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 Outline the legal requirements of the test for self-defence in your jurisdiction. 2 Which party bears the evidential burden and which party bears the persuasive burden in relation to self-defence? 3 Describe the elements of the partial defence of provocation (South Australia) or extreme provocation (New South Wales). Explain how the objective ‘ordinary person’ test operates in each jurisdiction. 4 Outline the elements of the defences of duress and necessity (or sudden and extraordinary emergency). What are the similarities and differences between these two defences of compulsion? 5 What steps would a legal practitioner take to determine whether their client was fit to be tried on a criminal charge? 6 What are the elements of the test for the defence of mental illness or mental impairment in your jurisdiction? 7 Which party has the persuasive burden in relation to this defence and to what standard must it be proved?

Problem questions SCENARIO 1 Assume the following facts. Mahla Henderson had recently endured several crises in her personal life. Mahla’s first child died twelve months previously as a result of sudden infant death syndrome, and approximately three months later her five-year marriage broke down and she separated from her husband. Subsequently, Mahla suffered severe bouts of depression, was eventually admitted to a psychiatric hospital and was diagnosed with bipolar disorder. Following a year’s leave of absence, Mahla returned to her work as a history teacher at a large secondary school. Mahla had been prescribed certain antidepressant medication and was taking it as directed by her psychiatrist. As one of the mathematics teachers, ­Harry Kennett, became ill during the day on which Mahla returned to work, she was ­assigned to take his Year 10 class for the last period of the day. This was a particularly troublesome class. One youth, Rob Godden, who had been in Mahla’s Australian history class the previous year, had decided that he was not going to make it an easy teaching period for Mahla. Rob was a very tall sixteen-year-old with a solid build indicative of his favourite pastime—playing in the front row of the school rugby team. Rob yelled out, ‘Hey Miss—I need a piss!’ He then took a black permanent marker and wrote in large letters on the classroom wall, ‘HENDERSON IS A FUCKIN’ MAD BITCH’. Mahla ignored Rob’s actions. Rob then strode out to the front of the classroom and approached the desk where Mahla was ­seated. He then spat towards Mahla and yelled, ‘What, are you fucking deaf too, mad bitch? I think I’ll just piss right here’. Rob then clenched his fist and pushed it firmly into Mahla’s neck. Suddenly, Mahla sprang up from her chair and, with what appeared to be superhuman strength, pushed the desk against Rob, causing him to fall heavily to the ground. She then picked up the solid wooden chair on which she had been sitting and struck Rob repeatedly across the head as he lay on the floor. Before any of the other students could intervene to stop Mahla, Rob was lying unconscious on the floor in a pool of blood. Rob subsequently died from a brain haemorrhage and multiple head injuries.

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Mahla Henderson has been charged with the murder of Rob Godden. You have been instructed to prepare Mahla’s defence. Analyse the defences available to Mahla in these circumstances. SCENARIO 2 Assume the following facts. Roxanne has been charged with the murder of her de facto partner, Ivan, on 12 May 2015. Roxanne and Ivan were well known to local police, who were often called to attend domestic disputes at their home. Investigating officers compiled a timeline of Roxanne and Ivan’s relationship: •• Roxanne and Ivan met in 1999; the couple have lived in Ivan’s house since early 2000. Roxanne’s daughter Jemima has lived in the house since 2008. •• Ivan was convicted of common assault (the charges stemmed from pub brawls) on three occasions between 1995 and 2011 (Ivan was intoxicated at the time of each of the incidents). •• Roxanne presented to the local hospital in 2001 (broken arm) and 2009 (broken hand) with injuries that police believe were inflicted by Ivan. •• On 21 September 2014, Jemima told Roxanne that Ivan had sexually assaulted her on a number of occasions. Jemima said that she was going to leave the house and move in with her grandparents. Ivan became aware that Jemima was preparing to leave. He told Roxanne that he wouldn’t let that happen, and that they would ‘all live together as one happy family’. •• Jemima escaped the house on 11 May 2015. When Ivan realised that Jemima had gone, he demanded that Roxanne tell him where she was. As he left the house to search for Jemima, Ivan said to Roxanne, ‘When I find her I’m going to teach both of you a lesson’. •• On the evening of 12 May 2015, Roxanne waited for Ivan to come home from his regular Saturday night drinking session. A neighbour reported hearing yelling before a number of gunshots were fired. Police arrived at the scene to find that Roxanne had shot Ivan 11 times with a semi-automatic weapon. A Crime Scene Officer recorded evidence that more than 40 shots had been fired in the lounge room. Roxanne told police that she first shot Ivan in the head, but that she ‘couldn’t stop shooting ‘cos she had to make sure that he was dead’. Advise Roxanne of the defences that may be available to her in relation to the charge of murder. For suggested solutions to problem questions, please visit .

Notes 1 Crimes Act 1900 (NSW) s 419; Crimes Act 1958 (Vic) s 322I(2); Criminal Law ­Consolidation Act 1935 (SA) s 15(5). See Ryan v R; Coulter v R [2013] NSWCCA 175 regarding the interpretation and application of the New South Wales legislation. 2 Note that more than one of these alternatives may be relevant to a particular case; see, for example, The Queen v Roberts (2011) 111 SASR 100, 117 [54] (Sulan J).

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3 The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) abolished the common law with respect to self-defence and established a statutory defence with effect from 1 November 2014; see Crimes Act 1958 (Vic) ss 322N, 623. 4 Branson v South Australian Police Force (1993) 60 SASR 325. 5 R v Kurtic (1996) 85 A Crim R 57. 6 Police v Lloyd (1998) 72 SASR 271, 278–9; Khammash v The Police [2001] SASC 52, [29]–[34]. 7 ‘Family violence’ is defined in Crimes Act 1958 (Vic) s 322J, and includes physical, sexual or psychological abuse perpetrated by family members, including parents, step-parents, guardians, children, people who share an intimate personal relationship and people who are ordinarily members of the same household. 8 See Morgan v Coleman (1981) 27 SASR 334, 336; R v Clothier [2002] SASC 9, [68]; Police v Tee [2005] SASC 402, [11]; and R v Dunn [2012] SASCFC 40. 9 See also R v Hendy (2008) 191 A Crim R 81 and Flanagan v R [2013] NSWCCA 320 (Beazley P, Fullerton and Campbell JJ). 10 Note also Crimes Act 1958 (Vic) s 322M(1)(a), which provides that self-defence may still be available where a person responds to harm that is not immediate in the context of family violence. 11 The statutory provisions in New South Wales and South Australia do not specifically address pre-emptive strikes in self-defence, so the common law continues to apply. See Police v Lloyd (1998) 72 SASR 271, 276–7 and Hone v Police (2013) 115 SASR 401. See also Nicholls v The Queen [2011] SASC 28 regarding the relevance of earlier interactions to ‘the accused’s appreciation and of the existence and extent of any ­danger’ (at [39]). 12 See Huggins v Police [2001] SASC 394. 13 Note that the failure to retreat may also be relevant to the first limb of self-defence; see R v Bridgland, ATS and Winter [2013] SASC 203 and Jessen v Police (2011) 112 SASR 1. 14 See, for example, Jessen v Police (2011) 112 SASR 1. 15 See R v Nguyen (1995) 36 NSWLR 397 for a specific example of a person acting outside the ‘understood conventions’ in a mutually agreed fight. Also, see Criminal Law Consolidation Act 1935 (SA) s 15(4)(b); Yengi v South Australia Police [2002] SASC 220; R v CMM (2002) 81 SASR 300, 309–10 [34]–[36], 310–1 [41]–[42]; and Anandan v The Queen [2011] VSCA 413. 16 Note, however, that the lawfulness of the conduct to which the accused responds remains relevant to both limbs of the test for self-defence: Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 203, [19] (Hodgson JA); see also Crawford v R [2008] NSWCCA 166. 17 Note this case was decided at common law before the codification of the law of self-defence in New South Wales. 18 Crimes Act 1900 (NSW) s 428F; Crimes Act 1958 (Vic) s 322T. 19 R v Clothier [2002] SASC 9, [73]. See also Bedi v The Queen (1993) 61 SASR 269, 273 and Hunter v Police (2011) 111 SASR 411, 420 (White J). 20 Viro v The Queen (1978) 141 CLR 88. 21 This was consistent with the position in England—see Palmer v The Queen [1971] AC 814 and R v McInnes (1971) 55 Cr App R 551.

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22 From 2005 to 2014, Crimes Act 1958 (Victoria) ss 9AC–9AE provided that self-defence was available in manslaughter cases where the accused was acting to prevent an unlawful deprivation of liberty, and also provided for an alternative v­ erdict of ­‘defensive homicide’ under Crimes Act 1958 (Vic) s 9AD where the accused did not have ­reasonable grounds for their belief that the conduct was necessary in self-defence. Those defences and alternative verdicts were repealed with effect from 1 ­November 2014. 23 See Ryan v R; Coulter v R [2013] NSWCCA 175; see also Smith v R [2015] NSWCCA 193 regarding the relationship between the Crimes Act 1900 (NSW) ss 418 and 421 tests for self-defence and excessive self-defence. 24 Criminal Law Consolidation Act 1935 (SA) s 15(2). 25 Crimes Act 1900 (NSW) s 420; Crimes Act 1958 (Vic) s 322K(3); Criminal Law ­Consolidation Act 1935 (SA) s 15A. 26 The defence is now known as ‘extreme provocation’ in New South Wales, but will be referred to as ‘provocation’ in the remainder of this chapter for ease of reference. 27 See Kourakis J’s useful review of this context in R v Hajistassi (2010) 107 SASR 67, 87–90. 28 See Crimes (Homicide) Act 2005 (Vic) and Victoria, Second Reading Speech of the Minister, Legislative Assembly, 6 October 2005, 1350. 29 Crimes Amendment (Provocation) Act 2014 (NSW); see also Select Committee on the Partial Defence of Provocation, Parliament of New South Wales, The Partial Defence of Provocation (2013). 30 Legislative Review Committee, Parliament of South Australia, Report of the Legislative Review Committee into the Partial Defence of Provocation (2014). 31 Crimes Act 1900 (NSW) s 23(7); Van Den Hoek v R (1986) 161 CLR 158. 32 Stingel v R (1990) 171 CLR 312, 320. 33 See Parker v The Queen (1963) 111 CLR 610. 34 A serious indictable offence is an offence punishable by imprisonment for a period of five years or more; see Crimes Act 1900 (NSW) s 4. 35 See, for example, The Queen v R (1981) 28 SASR 321; Chhay v R (1994) 72 A Crim R 1; and Osland v The Queen (1998) 197 CLR 316. 36 These observations are subject to the issue of ‘hearsay provocation’ addressed ­immediately below. 37 See R v Quartly (1986) 11 NSWLR 332. 38 Although R v Davis (1998) 100 A Crim R 573 was concerned with s 23 prior to the 2014 reforms, the relevant aspects of the provision remain unchanged; see also Clarke v R [2008] NSWCCA 36. 39 Holmes v DPP [1946] AC 588. 40 R v Moffa (1977) 138 CLR 601, 620. 41 Although R v Lees [1999] NSWCCA 301 was concerned with s 23 prior to the 2014 reforms, aspects of the judgments in the case addressed the common law position and thus remain relevant. 42 See also R v Kumar (2002) 5 VR 193; R v Kuster (2008) 21 VR 407, 429. 43 David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) at 896 note blackmail (Crimes Act 1900 (NSW) s 249K) and threatening to destroy or damage property

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(Crimes Act 1900 (NSW) s 199) as potential examples. Certain behaviours might also amount to relevant offences against the person, such as an assault occasioning actual bodily harm in the form of psychological harm (Crimes Act 1900 (NSW) s 59) or intimidation with intent to cause fear of physical or mental harm (Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13). 44 Ziha v R [2013] NSWCCA 27, [43] (Macfarlan JA). 45 R v Lees [1999] NSWCCA 301. 46 R v Scriva (No 2) [1951] VLR 298. 47 R v Gardner (1989) 42 A Crim R 279. 48 R v Lynch [2002] NSWSC 1140. 49 See R v Gardner (1989) 42 A Crim R 279 and R v Abebe [2000] VSCA 148. 50 See R v Kenney [1983] 2 VR 470. 51 R v Yasso [2004] VSCA 127; but compare Stingel v The Queen (1990) 171 CLR 312, 337. 52 Crimes Act 1900 (NSW) s 23(3)(b). 53 See Parker v The Queen (1963) 111 CLR 610. 54 See Parker v The Queen (1963) 111 CLR 610. 55 See R v Duffy [1949] 1 All ER 932 and Van Den Hoek v R (1986) 161 CLR 158 per Mason J at 168. 56 Parker v The Queen (1963) 111 CLR 610, 663. 57 Van Den Hoek v R (1986) 161 CLR 153; The Queen v R (1981) 28 SASR 321; R v Hill (1981) 3 A Crim R 397; Chhay v R (1994) 72 A Crim R 1. 58 Note David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015), 902 for discussion as to whether legislative reforms in New South Wales may have inadvertently narrowed this aspect of the provocation defence in that jurisdiction. 59 See, for example, R v PRFN [2000] NSWCCA 230, [48]; see also Ward v R [2013] NSWCCA 46, [131]–[134] (McClellan JA). 60 Chhay v R (1994) 72 A Crim R 1, 14. 61 In the sense of ‘possibly’ not likely or probably—Heron v R (2003) 140 A Crim R 317; see also Filippou v The Queen (2015) 89 ALJR 776. 62 See Masciantonio v The Queen (1995) 183 CLR 58, 67. 63 R v Croft [1981] 1 NSWLR 126; R v Cooke (1985) 16 A Crim R 304. 64 See also R v Georgatsoulis (1994) 62 SASR 351. 65 R v Lindsay (2014) 119 SASR 320, 380–1, [235]–[238]. 66 See also the reasoning of Nettle J at 534–5. 67 See R v Machin (No 2) (1997) 69 SASR 403 per Millhouse J at 406; Masciantonio v The Queen (1995) 183 CLR 58 per McHugh J at 72–4. Further consideration of this controversy is beyond the scope of this book—but see David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 902–8. 68 New South Wales, Parliamentary Debates, Legislative Assembly, 8 May 2014, 28502 (Brad Hazzard, Attorney-General). 69 Crimes Act 1900 (NSW) s 23(2)(d).

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70 See also Crimes Act 1900 (NSW) s 23(5), which provides that evidence of self-induced intoxication is not to be taken into account in relation to this aspect of the provocation defence. 71 See David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) 903, 906–7. 72 Cuu Nguyen v R (2008) 181 A Crim R 72; Taiapa v The Queen (2009) 240 CLR 95, 98; in Victoria, see Crimes Act 1958 (Vic) s 322I. 73 R v Le (No 3) (2010) 10 DCLR(NSW) 184, 186 (Berman DCJ). 74 See R v Dawson [1978] VR 536. 75 R v O’Brien [2003] NSWCCA 121, [41]. 76 Osborne v Goddard (1978) 21 ALR 189. 77 R v Hurley and Murray [1967] VR 526. 78 See R v Hudson [1971] 2 QB 202; R v Williamson [1972] 2 NSWLR 281; R v Palazoff (1986) 43 SASR 99; R v Abusafiah (1991) 24 NSWLR 531; and R v Hasan [2005] 4 All ER 685. 79 Makrynikos v R [2006] NSWCCA 170, [36]. 80 R v Abusafiah (1991) 24 NSWLR 531; Pimental (1999) 110 A Crim R 30; Makrynikos v R [2006] NSWCCA 170; see also R v Zaharias [2001] VSCA 168. 81 R v Palazoff (1986) 43 SASR 99, 109. 82 R v Palazoff (1986) 43 SASR 99, 108. 83 See R v Abusafiah (1991) 24 NSWLR 531; Pimental (1999) 110 A Crim R 30; and R v Zaharias [2001] VSCA 168. 84 Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic) 9. 85 See R v Dawson [1978] VR 536; R v Lawrence [1980] 1 NSWLR 122; and R v Brown (1986) 21 A Crim R 289. 86 R v Williamson [1972] 2 NSWLR 281. 87 R v Abusafiah (1991) 24 NSWLR 531. 88 Makrynikos v R [2006] NSWCCA 170. 89 R v Goldman (No 5) [2004] VSC 292, [6]. 90 Offences against the Drugs Misuse Act 1986 (Qld). 91 The defence of compulsion, found in Criminal Code (Qld) s 31(1)(d), is equivalent to the common law and statutory defence of duress. The trial judge had refused to leave the defence to the jury; this refusal was upheld on appeal to the Queensland Court of Appeal; see R v Taiapa (2008) 186 A Crim R 252. 92 See R v Brown and Morley [1968] SASR 467; R v Howe [1987] AC 417; R v Hasan [2005] 4 All ER 685, 694. Compare R v McConnell [1977] 1 NSWLR 714 (where it was held that duress is available to a person charged with being a principal in the second degree to murder) and R v Serone [2012] NSWSC 1232 (where the availability of duress to an accessory after the fact is accepted implicitly). 93 R v Rogers (1996) 86 A Crim R 542. 94 R v White (1987) 9 NSWLR 427. 95 Re A (Children) [2001] All ER (D) 1700. 96 R v Sood (No 3) [2006] NSWSC 762; CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47.

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B v R [2015] NSWCCA 103, [306] (Simpson J). R v Loughnan [1981] VR 443, 448. R v Dixon-Jenkins (1985) 14 A Crim R 372. Limbo v Little (1989) 45 A Crim R 61. Ranjit Murugason and Luke McNamara, Outline of Criminal Law (1997) 257. R v Dennison (Unreported, NSWCCA, 3 March 1988); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6(2). R v WRC (2003) 59 NSWLR 273; R v Sexton (2000) 116 A Crim R 173; R v Forrest [2013] NSWSC 527. R v Mailes [2001] NSWCCA 155; R v Taylor [2014] SASCFC 112. R v Rivkin [2004] NSWCCA 7, [298]. Presser v R [1958] VR 45; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(1); Criminal Law Consolidation Act 1935 (SA) s 269I. R v Tier [2001] NSWCCA 53; Mental Health (Forensic Provisions) Act 1990 (NSW) s 5; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(4)–(5); Criminal Law Consolidation Act 1935 (SA) s 269J(2). A detailed diagram outlining the procedure under Mental Health (Forensic Provisions) Act 1990 (NSW) Part 2 can be found in New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System – Criminal Responsibilities and Consequences (Report No 138, 2013) 131. This includes granting bail or conditional release or ordering detention in a range of different institutions; however, under s 12(4) detention in custody cannot be ordered unless there are no other practical alternatives. Mental Health (Forensic Provisions) Act 1990 (NSW) s 21; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16. Criminal Law Consolidation Act 1935 (SA) s 269D; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21(1)–(2); R v Porter (1933) 55 CLR 182, 184. Mental Health (Forensic Provisions) Act 1990 (NSW) s 38; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(2); Criminal Law Consolidation Act 1935 (SA) ss 269FB(3), 269GB(3). Criminal Law Consolidation Act 1935 (SA) ss 269O–269ZB; Crimes (Mental ­Impairment and Unfitness to be Tried) Act 1997 (Vic) s 23 and Part 5 ss 26–38F; ­Mental Health (Forensic Provisions) Act 1990 (NSW) Part 5. The New South Wales Law Reform Commission (NSWLRC) has recommended that a revised common law test for mental illness be incorporated as a defence of mental health and cognitive impairment into s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)—see NSWLRC, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences (Report 138, 2013) [3.36]–[3.42]. No action had been taken by the New South Wales Government in relation to this recommendation at the time of writing. R v Radford (1985) 42 SASR 266. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 25(1). R v Gemmill [2004] VSCA 72, [11]. R v Radford (1985) 42 SASR 266, 274. R v Falconer (1990) 171 CLR 30. See also the ‘Note’ to the definitions in Criminal Law Consolidation Act 1935 (SA) s 269A.

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120 R v Ryan [2009] NSWSC 46; R v Sleiman [2010] NSWSC 1206; Bratty v Attorney General for Northern Ireland [1963] 3 All ER 523. 121 R v Weeks (1993) 66 A Crim R 466; CJ v R [2012] NSWCCA 258; R v Johnson [2013] NSWDC 40 (bipolar disorder). 122 R v Berlingo [2003] SASC 109. 123 Bratty v Attorney General for Northern Ireland [1963] 3 All ER 523, 534. 124 R v Hennessy [1989] 2 All ER 9. 125 R v Sullivan [1984] AC 156. 126 R v Gemmill [2004] VSCA 72, [11]. 127 R v Derbin [2000] NSWCCA 361; R v Porter (1933) 55 CLR 182. 128 See R v Jones (Unreported, NSWSC, Sperling J, 13 May 1995). 129 This approach is supported by Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20, which provides that the accused’s inability to reason ‘with a ­moderate degree of sense and composure’ is considered as part of whether they knew that what they were doing was wrong. 130 R v Phomaranuphong [2001] NSWSC 1157, [50]. 131 R v Farrell [2003] NSWSC 300. 132 R v Kosowicz [2005] NSWSC 234; R v Dargin [2008] NSWSC 751; CJ v R [2012] NSWCCA 258, [95], R v Johnson [2013] NSWDC 40, [135]–[136], [149]–[152]. 133 See also, R v Pratt [2009] NSWSC 1108, [19]–[21] and Da-Pra v R [2014] NSWCCA 211, [9]–[11]. 134 R v Windle [1952] 2 QB 826. 135 R v Stapleton (1952) 86 CLR 352; R v Kosowicz [2005] NSWSC 234; R v Darmadji [2008] NSWSC 1308, [19]. 136 Sodeman v R (1936) 55 CLR 192; R v Farrell [2003] NSWSC 300. 137 See R v Byrne [1960] 2 QB 396. 138 R v Dawes [2004] NSWCCA 363. 139 R v Hinz (1986) 24 A Crim R 185, 188. 140 R v Adams [2002] NSWCCA 448. 141 R v PRFN [2000] NSWCCA 230. 142 R v Gagalowicz [2005] NSWCCA 452. 143 R v Peterson (No 4) [2014] NSWSC 1056, [76]–[77]. 144 In NSWLRC, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences (Report 138, 2013) [4.65]–[4.80], the Commission recommended that s 23A(1)(a) be amended by replacing the term ‘abnormality of the mind arising from an underlying condition’ with ‘cognitive impairment or mental health impairment’ based on the standard definition specified at [3.45], with the exclusion of personality disorders [4.77]. No action had been taken by the New South Wales Government in relation to this recommendation at the time of writing. 145 R v Tumanako (1992) 64 A Crim R 149. 146 R v Adams [2002] NSWCCA 448. 147 R v PRFN [2000] NSWCCA 230. 148 See, for example, R v Gosling [2002] NSWCCA 351; R v Durant [2007] NSWSC 428; R v Maric [2009] NSWSC 346; and R v Peterson (No 4) [2014] NSWSC 1056. ­Compare Goodridge v R [2014] NSWCCA 37.

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149 See R v Majdalawi [2000] NSWCCA 240 and Adanguidi v R [2006] NSWCCA 404. See also Potts v R [2012] NSWCCA 229. 150 R v Radford (1985) 42 SASR 266, 272; R v Falconer (1990) 171 CLR 30. 151 R v Radford (1985) 42 SASR 266, 276. See also Woodbridge v R [2010] NSWCCA 185 152 Bratty v Attorney General for Northern Ireland [1961] 3 All ER 523; R v Meddings [1966] VR 306; R v Sullivan [1984] AC 156. 153 R v Hennessy [1989] 2 All ER 9. Compare R v Quick and Paddison [1973] 1 QB 910, where it was held that the injection of insulin (an external cause) as opposed to the accused’s diabetes had caused the state of automatism. 154 Wogandt v R (1983) 33 A Crim R 31. 155 See Donyadideh (Unreported, FCA, 2 August 1995). 156 R v Radford (1985) 42 SASR 266, 276. 157 R v Radford (No 2) (1987) 11 Crim LJ 231, 232; R v Karageorges [2005] VSC 193. 158 R v Mansfield (Unreported, SC (Vic), Hampel J, 5 May 1994); R v Singh (2003) 86 SASR 473. 159 R v Radford (1985) 42 SASR 266. See also Woodbridge v R [2010] ­NSWCCA 185. 160 Compare R v Singh (2003) 86 SASR 473 to R v Leonboyer [2001] VSCA 149.

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SENTENCING AND PUNISHMENT COVERED IN THIS CHAPTER In this chapter, you will learn about: • the purposes of sentencing and punishment • common law sentencing principles • the sentencing process, including relevant factors in sentencing • judicial approaches to sentencing • sentencing and punishment options • victims’ rights, support and compensation.

CASES TO REMEMBER Markarian v The Queen (2005) 215 ALR 213

STATUTES TO REMEMBER Crimes (Sentencing Procedure) Act 1999 (NSW) Sentencing Act 1991 (Vic) Criminal Law (Sentencing) Act 1988 (SA) Victims of Crime Act 2001 (SA) Victims’ Charter Act 2006 (Vic) Victims Rights and Support Act 2013 (NSW) Victims of Crime Assistance Act 1996 (Vic)

INTRODUCTION Once a person is found guilty of, or pleads guilty to, a criminal offence, what happens to them? It becomes the responsibility of the presiding judicial officer to decide the appropriate punishment for that person through the sentencing process. Sentencing and punishment operate at the core of the criminal justice system and are the source of much public controversy and debate. There are many misconceptions about sentencing practice, often heightened by media coverage and the use of ‘law and order’ issues as political party platforms during election campaigns and at other times.1

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This is the final procedural layer of the criminal justice system. In the common law jurisdictions, sentencing mainly operates at state level through a legislative framework. The main pieces of sentencing legislation are: •• Crimes (Sentencing Procedure) Act 1999 (NSW) •• Sentencing Act 1991 (Vic) •• Criminal Law (Sentencing) Act 1988 (SA). Under this legislation judicial officers, as representatives of the community, perform the function of sentencing. This function carries with it a significant discretionary element. First, we will consider the objectives of sentencing and punishment and consider why we punish people.

PURPOSES OF SENTENCING AND PUNISHMENT There are various purposes of sentencing and punishment,2 and in each jurisdiction there is a legislative provision that sets out the purposes for which a court may impose a sentence on an offender: •• Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A •• Sentencing Act 1991 (Vic) s 5(1) •• Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(i), (j), (m), (2)(a). The four main purposes identified both at common law and from the legislative provisions are: (1) protection of the community/incapacitation of the offender (2) deterrence—specific and general (3) rehabilitation (4) retribution. These purposes overlap and may to some extent suggest different outcomes depending on the particular circumstances. It is important to understand that ‘theories about the causes of crime will influence the selection, adoption and endorsement of principles of punishment. Using these principles, judges structure penalties around institutions and practices in order to influence these causes’. 3 The first three purposes of punishment set out above are ‘utilitarian’ theories of punishment; they are based on the philosophy that, in promoting the greater ‘good’ of human happiness, the pain suffered by an offender through punishment is justified because more pain (stemming from more crime) will be prevented.4 Essentially, these theories are forward-looking and focused on prevention of future crime through effective punishment of offenders. The fourth purpose is backward-looking in that the focus is on punishment of the actual crimes committed by offenders.

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COMMUNITY PROTECTION/INCAPACITATION Sentencing and punishment are intended to protect society by restraining an offender who is considered likely to commit another crime—the usual form of incapacitation is imprisonment. Incapacitating offenders in this way prevents them from committing further offences. There are ‘collective’ and ‘selective’ forms of incapacitation. The first is a general strategy that involves incapacitating more offenders or incapacitating offenders for longer periods of time.5 The second form is targeted at incapacitating specific offenders who are predicted to be more likely to be repeat offenders. This reliance on predictions as to future criminality raises clear doubts as to the reliability of incapacitation as an effective purpose of punishment; this is apparent from the literature in this area and the statistical data on reoffending.6

SPECIFIC AND GENERAL DETERRENCE Deterrence aims to reduce or prevent crime in society on the basis of fear of any penalty that may be imposed: ‘the threat of punishment (or further punishment in the case of individual deterrence) acts as a deterrent’.7 There are two aspects to punishment as a deterrent. The first aims to deter the individual offender who is actually punished; this is known as specific deterrence and attempts to stop the offender from committing the same offence again or any further offences. The second aspect is general deterrence, which seeks to further the aim of crime prevention through sentences designed to deter others who may contemplate committing similar offences. There is no unequivocal evidence that punishment as a general deterrent is effective. It is, however, accepted—though probably incapable of explicit demonstration—that punishment does prevent ‘many crimes (for example, those involving foresight or planning as opposed to those committed impulsively) that would have occurred if no, or only light, punishment were to result’. 8 The courts still generally continue to regard deterrence as a legitimate sentencing aim 9 and this has been affirmed in the comparatively recent and specific context of a ‘glassing’ offence.10 We do need to ask, however, whether the reporting of crime and punishment in the media is effectively communicating the ‘deterrence’ message to the general community and, also, what sorts of punishment will act as deterrents.

REHABILITATION The concept of rehabilitation ‘encompasses approaches to fostering lawabiding habits which are intended to work by changing offenders’ attitudes and inclinations’.11 It is based on the idea that punishment can reform an offender through facilitating a deeper realisation of the antisocial nature of offending, or

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through treating the causes of the offending, rather than through fear of further punishment. Rehabilitative theories proceed on the assumption that where relevant behavioural and social factors can be properly identified in a particular case, some form of treatment or assistance can be prescribed relevant to the causes of the criminal behaviour. Rehabilitation was prominent in the 1960s but declined in the 1970s ‘partly because of the publicity given to negative research findings, partly because of wider social and economic changes, and partly because of disenchantment about the intellectual basis of rehabilitative approaches’.12 In the last two decades, however, there has been renewed interest in rehabilitation or intervention programs, which at least provide the opportunity for reform even if they are not universally successful. 13 Restorative justice may be characterised as a form of rehabilitation in that it focuses the offender’s attention on the implications of their criminal behaviour and involves the offender in strategies to assist in repairing the damage they have done to the victim and wider community. The methods of restorative justice include monetary compensation or symbolic measures such as apologies, or other attempts at reconciliation through conferences or mediations. Restorative justice aims to go beyond restitution or monetary compensation and at least tries to return the offender to the centre of society from its margins. The hope is to bring the offender back into ‘full membership of society’ by processes like reintegrative shaming. 14 Restorative justice has contemporary significance, particularly in relation to juvenile offending, an example of which is the youth justice conferencing scheme in the Young Offenders Act 1997 (NSW).

RETRIBUTION In contrast to the utilitarian theories considered above, retributive theories are backward-looking and focus on the crime committed. That is, offenders will be sentenced solely on the basis of, for example, the murder or robbery offence they have committed. They will not be sentenced on the basis of the risk that they might commit such offences in the future, that they can be deterred from doing so, or that they can be assisted or treated in some way so that they do not commit such offences. The type and amount of punishment imposed is based entirely on past conduct. Retributivist theories of punishment involve the premise that a person who inflicts harm should suffer harm, and that in inflicting punishment there is an element of rightful retaliation or revenge on behalf of the community and any specific victims. Historically, a well-known version of retribution is found in the lex talionis of biblical times—‘an eye for an eye, a tooth for a tooth, a life for a life’. 15 In the last twenty-five years of the twentieth century, however, retribution re-emerged in the form of ‘just deserts’ as the emphasis on rehabilitation declined. Proponents of the ‘just deserts’ notion consider that offenders deserve to be

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punished for the crimes they have committed, but emphasise the proportionality of the punishment to the gravity of the offending conduct. They do not, however, endorse the strict equivalence of the lex talionis.16 Proportionality is assessed by having regard to the seriousness of the harm caused or risked by the offender and the degree of the offender’s culpability or blameworthiness. It has been argued that the notion of just deserts has led to an increase in the severity of punishment because it has enabled politicians to introduce more punitive sentencing policies. However, some notable proponents of the ‘just deserts’ theory contend that overall levels of punitiveness should be moderate when guided by ‘the principle of penal parsimony’; that is, the least severe punishment sufficient to censure the offender should be imposed.17 Although ‘just deserts’ has been identified as the predominant goal of punishment, the legislative statements of the purposes of punishment in Australian jurisdictions contain no identifiable hierarchy of sentencing goals, as the importance attached to any particular purpose of sentencing inevitably varies from time to time, reflecting changes in society and community perceptions.18 The preference for non-hierarchical sentencing purposes was neatly summed up in a statement by the Australian Law Reform Commission that it is not ‘necessary or desirable to identify a primary purpose of sentencing or to rank the various purposes of sentencing … [as it] would not necessarily result in more consistent sentencing practices … [t]he purposes of sentencing must ultimately depend on the offender and the offence’.19

COMMON LAW SENTENCING PRINCIPLES There exist alongside the theoretical purposes of punishment a number of general qualitative sentencing principles which have been articulated by appellate courts. These ‘key sentencing principles developed by the common law guide the courts in the imposition of sentences … [and] play a part in securing consistency both in approach and in the sentence that is imposed. A court’s departure from these principles may give rise to appealable error’.20 As no two offences are ever the same, even when committed by the same offender, it follows as a general rule that the decisions of higher courts in sentencing cases can only be relevant to the extent that they demonstrate how a particular type of case has been dealt with in the past. This approach may be useful in avoiding disparity of sentence. However, it is clear that where a higher court decision establishes a sentencing principle or involves the construction of legislation in relation to sentencing practice and procedure, it is binding on courts lower in the hierarchy. 21 First, there is the principle of proportionality. Apart from being a major tenet of the retributive ‘just deserts’ theory of punishment, proportionality is established as a fundamental sentencing principle at common law.22 Essentially, proportionality is

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regarded as a limiting principle in punishment: a sentence must be commensurate with the gravity of an offence measured by its objective circumstances, and no sentencing measure may exceed the boundaries set by this principle. Notably, the protection of the community has been held to be a legitimate sentencing objective, but it cannot be used merely as a method of preventive detention without regard to consideration of proportionality in sentencing.23 A sentencing judge or magistrate can seek to achieve any of the purposes of sentencing within the parameters of the proportionate sentence.24 Second, the principle of parsimony ‘operates to prevent the imposition of a sentence that is more severe than is necessary to achieve the purpose or purposes of the sentence’.25 This principle is explicitly stated in the Sentencing Act 1991 (Vic) s 5(3)–(4) and should be a check on punishments under a ‘just deserts’ approach to sentencing.26 The New South Wales Law Reform Commission noted in their 2013 Sentencing report that ‘attempts to introduce parsimony as a sentencing principle in NSW have been “authoritatively rejected”’, referencing Foster v R [2011] NSWCCA 285 per McClellan CJ at CL at [4].27 Overall the Commission considered that introducing a principle of parsimony in New South Wales would not beneficially advance the sentencing exercise given the existing principles. Rather, it would risk adding to the complexity of the sentencing exercise ‘and would potentially require a significant departure from established sentencing practice in NSW’.28 Third, the sentences imposed should reflect the totality of the offender’s criminality in relation to the offences charged. This principle applies to the way in which multiple sentences for different offences are combined when imposed at the same time, and also to the way in which new sentences are combined with existing sentences. In Mill v R (1988) 166 CLR 59, the High Court stated the principle in general terms— namely, that the total sentence imposed upon an offender must reflect the totality of the offending, so that the aggregate sentence is just and appropriate to the totality of the criminal behaviour.29 In practical terms this may be achieved by making multiple sentences wholly or partly concurrent, or by other methods available in particular jurisdictions.30 It is clear from Pearce v R (1998) 156 ALR 684 that when dealing with multiple offences, a court must first determine the appropriate sentence for each different offence before deciding questions of concurrence or cumulation, having regard to the principle of totality.31 This requirement has been overcome to some extent by legislative changes in New South Wales and South Australia that allow the court to impose an ‘aggregate sentence of imprisonment’ for multiple offences instead of separate sentences for each offence.32 Fourth, the principle of parity between co-offenders allows an appellate court to intervene where the comparison between the sentences imposed on co-offenders shows such a disparity as to ‘engender a real sense of grievance’. In Lowe v The Queen (1984) 154 CLR 606, Mason J clearly stated the principle as ‘a reflection

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of the notion of equal justice’ (at 610–11). It has been consistently applied in subsequent cases, including Postiglione v The Queen (1997) 189 CLR 295 and R v Salcedo [2004] NSWCCA 430. In Salcedo the court emphasised that there must be ‘marked’, not ‘mere’, disparity to attract the operation of the principle. In practical operation the principle is quite narrow: the sentencing judge should take into account the sentence imposed on any co-offender only where the same offence and same number of offences are charged and the objective conduct and antecedents are similar.33 Fifth, a comparable principle is that of consistency or parity between offenders charged with similar offences, popularly known as ‘tariff’ sentencing. Street CJ explicitly recognised this principle in R v Visconti [1982] 2 NSWLR 104 at 108, stating: The second initial consideration is the ascertainment of the existence of the ­general pattern of sentencing by criminal courts for offences such as those under ­consideration. The task of the sentencing judge, no less than the task of an ­appellate court, is to pursue the ideal of even-handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in ­interpreting and carrying into effect the policy of the legislature. That collective wisdom is ­manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.

This principle is often difficult for sentencing judges to put into practice, but a failure to do so may justify appellate intervention on the basis of the sentence being manifestly excessive or inadequate having regard to the general pattern of sentencing for the particular offence. Perhaps more significantly, it may create a perception in the mind of the general public of inconsistent and disparate sentencing practice. One contemporary means of employing this principle is by guideline judgments, which have been established in all common law jurisdictions.34 Guideline judgments involve the court formulating detailed guidance through appellate judgments as to the appropriate sentence range, starting point or relevant factors for consideration when imposing sentences for a specific type of criminal offence. This mechanism has been used in New South Wales,35 South Australia36 and Victoria.37 It has been emphasised in the various cases that ‘the role of guideline judgments is limited to a useful method of comparing the exercise of sentencing discretion between cases rather than prescribing a certain approach or outcome’. 38 They are not intended to be applied in every case as if they were rules binding on sentencing judges. Even with the development of guideline judgments, however, it is apparent that the way in which the sentencing process is carried out still largely depends on the way the considerable discretion of the sentencing judge is exercised.

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THE SENTENCING PROCESS Given its public nature, it is vital for the practical process of sentencing to be both just and seen to be just. The sentencing hearing takes place immediately after the accused has pleaded guilty or, where a trial has occurred, has been found guilty of the offence charged. In order to arrive at the appropriate penalty, the judge must consider or weigh the factors that are relevant to sentencing. The relevant factors are either derived from the common law or set out in the legislation for a particular jurisdiction (for example, Sentencing Act 1991 (Vic) s 5(2), (2A), (2B), (2C), (2D) and Criminal Law (Sentencing) Act 1988 (SA) s 10(1), (2), (4)). They relate to such matters as the culpability of the offender, the nature and circumstances of the offence committed, and the impact of a sentence on the offender. The sentencing process in common law jurisdictions is conducted within the adversarial system and it is important to understand the roles of the parties. The prosecutor’s role is to ensure that all relevant information and assistance is given to the court to enable it to pass a proper sentence, including an accurate set of facts to reflect the criminality involved in the matter. Where the facts are agreed with the defence, this may be the only factual material that has to be tendered. 39 Depending on the case, the prosecution may also tender other documents to ensure that evidence of all matters relevant to proof of the accused’s guilt and criminality is before the court, including the victim’s statement, any record of interview or statement made by the accused and statements of investigating police officers. In the event of a guilty verdict following a trial, the evidence in the trial has established the prosecution case and it would generally not be appropriate to tender any statements. Any disputed statement of fact not essential to the conviction, but relevant for the purposes of sentencing as a factor in aggravation, must be proved by the prosecution beyond reasonable doubt. Any matters in mitigation raised by the accused, however, may be proved on the balance of probabilities.40 The sentence is to be confined to the offences proved and may not be imposed on the basis that the offender may also be guilty of more serious offences with which they have not been charged or of which they have not been convicted. 41 It may, however, be appropriate in certain cases for a sentencing judge to take into account the fact that the matter being dealt with is not an isolated incident, but is part of an admitted wider pattern of conduct.42 The prosecutor will also tender the ‘antecedents’ or criminal history of an offender. Usually this will be a ‘fingerprint record’ setting out all the prior criminal convictions of the offender in short form; more formal procedures are available if required. 43 Where there are multiple offences, the prosecution may utilise the procedures available for taking other offences into account.44 Details of the offences to be taken into account in sentencing for a principal offence are placed on a form as prescribed

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in the relevant jurisdiction. The purpose of this is to enable all similar or outstanding charges against an offender to be disposed of by the court in a comprehensive statement. Where other offences are taken into account, the effect is that the sentence passed then may be greater than that which would have been appropriate for the principal offence alone, but it cannot be longer than the statutory maximum for the principal offence.45 An offence taken into account on a form is not to be regarded as a conviction in New South Wales and Victoria,46 but there is no parallel provision in South Australia.

RELEVANT FACTORS IN SENTENCING The following are the factors most relevant to the determination of a sentence: (1) The statutory maximum penalty provides the ceiling of the judge’s sentencing ­discretion and indicates the seriousness with which the legislature views the ­particular offence. Imposition of the maximum penalty is reserved for those ­offences falling into the ‘worst class of case’ coming before the court in the ­particular offence category.47 (2) The seriousness of the offence can be determined on a spectrum within each ­offence category by consideration of such factors as (a) the degree of harm suffered by the victim; (b) the type of victim; (c) premeditation; (d) level of violence used; (e) use of weapons and nature of weapon used; (f) breach of trust; and (g) ­individual role in the offending, in the case of multiple offenders.48 (3) In relation to matters of aggravation, there are a number of factors for a judicial officer to consider and most are now listed in sentencing legislation as follows: •• Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2) •• Sentencing Act 1991 (Vic) s 5(2)(g) •• Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(c)–(f), (o), (2) and Criminal Law Consolidation Act 1935 (SA) s 5AA(1) (aggravated offences). These factors will either result in the conduct of the offender being regarded as more harmful or making the offender more culpable. The legislative provisions in New South Wales and South Australia generally reflect the categories developed at common law, whereas in Victoria only a general statement is made about ­‘aggravating’ factors so that common law principles will continue to provide ­important guidance as to specific ‘aggravating’ factors in this jurisdiction. Where an aggravating factor is already an element of the offence for which an offender has been convicted, the court cannot have additional regard to any such aggravating factor in sentencing.49 An offender’s prior criminal record does not justify the imposition of a heavier sentence as this could be seen as further penalising the offender for past ­offences. However, it does mean that, depending on the particulars of the record, the

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offender is not entitled to the usual leniency afforded to a person without a criminal record. The criminal antecedents of an offender may also be important in showing, depending on the situation, that the offence was an ‘uncharacteristic aberration’; that there was a significant gap between offences, showing a serious effort to keep away from crime; or that it was part of ‘a continuing attitude of disobedience of the law’ requiring imposition of a sufficiently deterrent sentence.50 (4) It is generally the case that, in the interests of the offender, subjective features relevant in mitigation of the offence and the penalty to be imposed are raised and emphasised by defence counsel in the sentencing hearing. These mitigating factors range across a wide spectrum and are listed in sentencing legislation as follows: •• Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3) •• Sentencing Act 1991 (Vic) ss 5(2)(e)–(g), (2C)–(2D), 6, 6AAA •• Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(g)–(h), (l)–(o). A significant factor in mitigation is a guilty plea51 and the timing of the plea in terms of utilitarian value to the criminal justice system is an important matter to ­consider when giving credit or a discount on sentence.52 An early guilty plea will very likely result in a significant discount. A plea of guilty may also be an indication of contrition on the part of the offender and may be separately taken into account in mitigation. Another significant factor in mitigation is the previous good character of the offender. In Ryan v The Queen (2001) 206 CLR 267, the High Court held that it is necessary to determine whether an offender is of ‘otherwise good character’ and that determination must be made without consideration of the offences for which the offender is being sentenced. Weight to be given to an offender’s ‘otherwise good character’ will vary according to the circumstances of the particular case, 53 but where it exists some leniency must be afforded to the offender. The final mitigating factor we will consider is the effect on third parties. Essentially the position is that only where circumstances are ‘highly exceptional’, and where it would be inhumane to refuse to do so, can hardship to others in sentencing be taken into account.54 There is some authority that hardship to third parties can be taken into account in assessing the appropriate penalty as ‘part of the general mix of subjective matters’;55 however, subsequent authorities in New South Wales have emphasised that the principle is that such hardship cannot ‘be used to justify any substantial reduction in sentence, unless it [is] truly exceptional’.56

JUDICIAL APPROACHES TO SENTENCING Judicial officers are required to give reasons for the sentences they impose. This is an important part of judicial accountability in that the offender, any victim and the community generally are able to determine whether justice has been done in

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accordance with the principles of consistency and fairness by reference to the reasons for, and quantum of, the sentence. There has been an ongoing debate about the correct methodology to be applied by the courts in their approach to the complex task of sentencing. 57 The ‘instinctive’ or ‘intuitive’ synthesis approach purports to derive the appropriate sentence by determining the relative weights of all relevant considerations— objective seriousness, subjective factors and sentencing principles—in a single step or synthesis, rather than sequentially. This approach has been regarded by the courts as the proper method for determining a just sentence and less likely to lead to error.58 In contrast, ‘two-tiered’ sentencing in its broad sense involves a sequential process. It involves a reasoning process where the judicial officer first considers the objective circumstances of the offence so that they can place the particular crime on the spectrum of seriousness for the offence category, and then separately considers the various subjective circumstances of the offender before deciding the sentence to be imposed. ‘The concept of two-tiered sentencing also applies to a process of reasoning by which the sentencer first specifies a sentence regarded as proportionate to the crime or as otherwise appropriate to the circumstances of the case and then, by reference to a particular factor, proceeds to specify an amount by which the sentence is to be varied’ (emphasis added). 59 This is a narrower definition of two-tiered sentencing and focuses on particular percentage discounts, such as for a plea of guilty or assistance to the authorities. This approach has not gained general judicial acceptance and has been the subject of some strong judicial criticism.60

A CASE TO REMEMBER Markarian v The Queen (2005) 215 ALR 213 In this case the majority of the High Court accepted ‘instinctive synthesis’ as the preferred approach to sentencing. At the same time, however, the perceived prohibition against the two-tiered approach was significantly modified. Such modification has clearly resulted from an acknowledgment of the increasingly specific requirements of statutory sentencing regimes applicable in particular jurisdictions. The majority emphasised that ‘no universal rules can be stated’ while observing that ‘the law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends’ (emphasis added).61 These occasions seem to be dependent on the complexity of the particular sentencing task, and if there are multiple considerations to be weighed by the trial judge (as in Markarian) the resort to sequenced arithmetical processes is considered to increase the potential for error, whereas a quantified allowance for ‘one substantial mitigating factor, such as a plea of guilty … will not, of itself, amount to an error’.62

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Subsequently in Muldrock v The Queen (2011) 244 CLR 120, the High Court affirmed ‘intuitive synthesis’ as the correct approach by unanimously endorsing McHugh J’s statement from Markarian as to what is involved in this approach, and that courts are not generally permitted to engage in a two-stage approach to the sentencing of offenders. This decision was in the specific context of sentencing under the standard non-parole scheme in s 54B Crimes (Sentencing Procedure) Act 1999 (NSW), but the High Court clearly stated that the sentencing task under this legislation required a general approach consistent with that described by McHugh J in Markarian v The Queen (at 131–2): [T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. (emphasis added)

The NSWLRC has recently observed that ‘instinctive synthesis’ ‘seems to have become embedded in sentencing practice in NSW’ and is generally accepted in other Australian jurisdictions.63 Therefore, unless legislation or guideline judgments require the court to specifically quantify sentencing discounts, such as guilty pleas and assistance to authorities, judicial officers must approach the sentencing task using ‘instinctive synthesis’ methodology.

SENTENCING AND PUNISHMENT OPTIONS Table 12.1 provides a snapshot of the sentencing options available to the courts in the common law jurisdictions. What follows is a brief description of what each option comprises. TABLE 12.1 Sentencing options in the common law jurisdictions SENTENCING OPTION

CRIMES ­(SENTENCING PROCEDURE) ACT 1999 (NSW)

SENTENCING ACT 1991 (VIC)

CRIMINAL LAW (SENTENCING) ACT 1988 (SA)

1 Dismissal/ conditional discharge

s 10

ss 7(1)(h) and (j), 73, 76

ss 15–16

2 Good behaviour bond, intervention programs

ss 9, 10(1)(b), 95 (conditions), 98 (breach); ss 95A–95B, 100M–100T

s 7(1)(i) and (g); s 72 (conviction); s 75 (without conviction); ss 83AC, 83AT (contravention); ss 80–83 (justice plan; residential treatment order)

ss 39–40, 42 (conditions), 56B–58 (enforcement), s 42(1)(da), (6)–(8) (condition of bond)

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SENTENCING OPTION

CRIMES ­(SENTENCING PROCEDURE) ACT 1999 (NSW)

SENTENCING ACT 1991 (VIC)

CRIMINAL LAW (SENTENCING) ACT 1988 (SA)

3 Deferred sentence

s 11

ss 7(2), 83A

s 19B, s 19D (after sentencing conference in ERD court)

4 Fine

ss 14–17; Fines Act 1996 (NSW) (enforcement)

ss 7(1)(f), 49–63; ss 64–68 (fine conversion order – unpaid community work); ss 69–69ZG (enforcement – fine default), 83ADA–83ADB, 83ASA (contravention of orders)

s 34, ss 60–70U (enforcement)

5 Community service order

ss 8, 84–93

Unpaid community work orders only available as fine conversion or fine default orders or condition of community correction order

ss 42(1)(d) (condition of bond), 45–51, ss 71–71B (enforcement)

6 Intensive correction order

ss 7, 64–73A

N/A (repealed)

N/A

7 Community correction order

N/A

ss 7(1)(e), 36–48Q; ss 83AD, 83AS (contravention)

N/A

8 Suspended sentence

s 12

N/A (repealed)

s 38

9 Home detention

ss 6, 74–83

N/A (repealed)

ss 38(2c) (condition of bond), 50AA

s 5A— compulsory drug treatment detention; Drug Court Act 1998 (NSW) Part 2A ss 18A–18J.

ss 18X–18ZT

Drug Court Program – (Magistrates Court)

ss 7(1)(a), 9–18

ss 30–32A

10 Drug treatment orders (Drug Court)

11 Imprisonment ss 5, 44–63

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1 DISMISSAL/CONDITIONAL DISCHARGE This option involves the judicial officer finding the offence proven but not recording a conviction. In New South Wales, the defendant may then be discharged unconditionally without penalty or conditionally upon their entering into a good behaviour bond or agreeing to participate in an intervention program. In South Australia, there is provision to impose a penalty—namely a fine, a sentence of community service or both—without recording a conviction. In Victoria, discharge and dismissals are unconditional. In New South Wales and South Australia, certain criteria apply to the availability of these options where no conviction is recorded. For example, under Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(3): the court is to have regard to the following factors: (a) (b) (c) (d)

the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, any other matter that the court thinks proper to consider.64

There is also provision under Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A for a court to convict an offender of an offence without imposing any penalty.

2 GOOD BEHAVIOUR BOND This is a form of conditional liberty, whereby an offender is released into the community under certain restrictions, one invariably being that they be of ‘good behaviour’ for a certain period of time. Good behaviour bonds in New South Wales and South Australia can be imposed with or without recording a conviction. In Victoria, a similar option is termed ‘release on adjournment following conviction’ (s 72) or ‘without conviction’ (s 75) upon the offender giving an undertaking with conditions attached, primarily to be of good behaviour. The maximum term of a bond in New South Wales and a release on adjournment order in Victoria is five years, whereas in South Australia it is three years (s 40). Other conditions of a good behaviour bond may include being supervised by a probation officer, counselling and/ or treatment for a psychological condition or for drug/alcohol abuse, not associating with certain people and not approaching certain victims.65 In New South Wales and Victoria, conditions requiring performance of community service work, payment of compensation or a fine are not permitted, whereas in South Australia such conditions can be attached to a bond. Conditions in all jurisdictions may extend to participation in intervention programs (New South Wales and South Australia) or a justice plan or residential treatment order (Victoria). In New South Wales, intervention programs that are currently available are circle sentencing for Aboriginal offenders, forum sentencing and traffic offenders. 66

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If an offender breaches a bond in New South Wales or South Australia, action can be taken to call the offender back before the court. Upon the breach being proved, the court may take no action, vary the conditions of the bond or revoke the bond and resentence the offender in relation to the original offence. A similar procedure applies where an offender has contravened an order for release on adjournment in Victoria under Sentencing Act 1991 (Vic) s 83AT. In addition the contravention is a separate offence under s 83AC punishable by a Level 10 fine (10 penalty units—s 109(2)).

3 DEFERRED SENTENCE The form of this sentencing option is comparable to the ‘common law bond’ or what has been known as a ‘Griffiths Bond/Remand’.67 The ‘deferred sentence’ options in New South Wales, Victoria and South Australia allow for the deferral of sentence after a finding of guilt by adjourning the proceedings for a certain period not exceeding twelve months. During the adjournment, the offender is released on a bail undertaking for a certain purpose or purposes, including assessing ‘capacity and prospects for rehabilitation, or … participation in an intervention program, or … for any other purpose the court considers appropriate in the circumstances’. As the offender is on a bail undertaking and has not been dealt with for the original offence, they can be brought before the court at any time for sentence on the original offence.68

4 FINE The imposition of a fine requires an offender to pay a sum of money as a penalty. Fines are widely used in Australian criminal courts. Maximum fines are specified in terms of penalty units in New South Wales and Victoria. A penalty unit is currently worth $110 in New South Wales69 and $155.46 in Victoria, where it is subject to annual indexation in accordance with movements in the Consumer Price Index. 70 In contrast, South Australia has a standard scale of fines across twelve divisions ranging from $50 (or a $25 expiation fee) to $60,000.71 A detailed procedure relating to fines and their enforcement is contained in legislation for each jurisdiction, as set out in Table 12.1. This legislation includes provisions as to time to pay, offenders’ means to pay, management of debt recovery and fine-enforcement action. Enforcement action for the non-payment of fines varies across a spectrum, from cancellation of driver’s licence and vehicle registration to civil enforcement by garnishee order and criminal enforcement by community service orders, with full-time imprisonment a last resort.72 In Victoria, there are fine conversion orders and provision for unpaid community work.

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5 COMMUNITY SERVICE ORDER Community service orders are available as an alternative to imprisonment in New South Wales and South Australia. They are no longer available as a stand-alone sentencing option in Victoria; however, unpaid community work orders can be made as a condition of a community correction order,73 as a fine conversion order on application of the offender74 or as a fine default order on the application of the person in default of the payment of a fine.75 Under a community service order, an offender is required to do certain unpaid work, service or other activity in the community. A maximum of 500 hours’ community service or unpaid community work can be ordered in New South Wales and Victoria whereas the maximum in South Australia is 300 hours.76 There are also restrictions on the court when making community service orders, requiring it to have regard to such matters as the suitability of the offender for community service work, the availability of work in the area in which the offender resides and the type of offence for which the offender has been convicted. A community corrections officer or probation and parole officer will provide the court with an assessment report. If an order is made, an officer will supervise the order to ensure the offender complies with reporting and work requirements. Conditions may be attached to an order. 77 If the order is breached, the offender may be brought back to court, the order may be revoked and a sentence of imprisonment may be imposed.78

6 INTENSIVE CORRECTION ORDER These orders exist only in New South Wales and are effectively a term of imprisonment of no more than two years served in the community. An offender may be referred for assessment as to suitability for an intensive correction order having regard to the matters set out in s 67(1) Crimes (Sentencing Procedure) Act 1999 (NSW). If the court makes an order for intensive correction in the community, mandatory conditions for an offender include participation in activities to address factors associated with their offending, undertaking a minimum of thirty-two hours’ community service a month, submitting to surveillance or monitoring, and testing for alcohol or drug use.79 The court can impose additional conditions in relation to employment, associates and restrictions on movements and may also impose any other condition considered necessary or desirable to reduce the likelihood of the offender reoffending.80 The Commissioner of Corrective Services deals with breaches of an intensive correction order by warning or more stringent application of conditions.81 If a breach of a serious nature is involved, the Commissioner can refer it to the State Parole Authority, which has the power to impose up to seven days’

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home detention, suspend the order and issue an arrest warrant, or revoke the order so that the offender’s sentence of imprisonment will be served in full-time custody. 82

7 COMMUNITY CORRECTION ORDER These orders exist only in Victoria and have been available to Victorian courts since 16 January 2012. They effectively replace a range of non-custodial options with one option for a flexible order to which can be attached ‘a range of conditions, which are variously coercive, prohibitive, intrusive and rehabilitative’.83 The Victorian Court of Appeal, when considering an application for the court to give a guideline judgment to assist sentencing courts in deploying the community correction order as a sentencing option, described it in the following way: The CCO [community correction order] is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the cause of the offending, and to minimize the risk of re-offending by promoting the offender’s rehabilitation.84

Under the Sentencing Act 1991 (Vic), sentencing courts have the power to make a community correction order where an offender has been convicted or found guilty of an offence; the period of the order must not exceed two years if imposed in the Magistrates’ Court for one offence or the maximum term of imprisonment available for the offence if imposed in the County or Supreme Court. 85 The terms of a community correction order are set out in s 45(1) Sentencing Act 1991 (Vic) and include good behaviour, reporting to a community corrections centre and complying with any obligation or requirement prescribed by the regulations. The court can attach additional conditions, including unpaid community work, treatment and rehabilitation for drug or alcohol dependency or abuse, psychological or psychiatric treatment, any other treatment or rehabilitation through development programs that address factors related to the offending behaviour, supervision, non-association with specified persons, residence restriction or exclusion, curfew, judicial monitoring or electronic monitoring.86 It is possible for a court to impose a sentence of imprisonment in addition to making a community correction order when sentencing an offender for one or more offences.87 Upon the application of an interested party, including the prosecution, offender or the Secretary to the Department of Justice, a community correction order may be varied by the court; this can include varying the conditions or cancelling the order and dealing with the offender as if the court had just found the offender guilty of the offence/s.88 It is an offence to contravene a community correction order, which is punishable by three months’ imprisonment and the court must confirm, vary or cancel the original order. 89

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A bench of five judges in the Victorian Court of Appeal issued a guideline judgment in the case of Boulton v The Queen [2014] VSCA 342 in December 2014; it provides detailed guidelines for sentencing courts in relation to the general principles applying to a community correction order, determining whether a sentence of imprisonment should be imposed and/or a community correction order made by the court, determining the length of a community correction order and determining the conditions to be attached to a community correction order. The Court of Appeal emphasised that this new sentencing option serves a different purpose to traditional non-custodial sentencing options and ‘in some cases, it will be appropriate to impose a CCO (with or without an added sentence of imprisonment) for relatively serious offences which would previously have attracted quite a substantial term of imprisonment’.90

8 SUSPENDED SENTENCE This option involves imposition of a sentence of imprisonment that is then wholly or partially suspended upon the offender entering into a good behaviour bond. It applies to sentences of imprisonment generally in South Australia although there are certain exceptions and restrictions that apply to designated and prescribed designated offences.91 In New South Wales, the option applies only to sentences of not more than two years and the sentence must be wholly suspended. 92 This sentencing option has been abolished in Victoria and replaced with the community correction order discussed above. In New South Wales and South Australia, if there is a breach of the good behaviour bond by the offender then the bond may be revoked and the offender may be ordered to serve the remainder of the sentence in prison (or other orders can be made depending on the nature of the breach).93

9 HOME DETENTION Home detention involves the offender being incarcerated in their own home with monitoring by electronic devices attached to the body and/or random communication with probation officers. Orders for home detention can be made only where the sentence of imprisonment is eighteen months or less in New South Wales. In South Australia, a home detention order of no more than twelve months can be made only as a condition of a bond where there has been suspension of a sentence of imprisonment. This option is no longer available in Victoria. There are restrictions on the availability of this sentencing option in terms of offence type and offender history.94 Also, a suitability assessment must be provided to the court and the other persons with whom the offender will reside at home must consent in writing

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to the making of the order.95 The nature of this sentence has been stated to be ‘substantially less onerous’ than serving a sentence of imprisonment ‘in the confines of a prison, even a low security prison’.96

10 DRUG TREATMENT ORDER (DRUG COURT) There is provision in each jurisdiction for an eligible convicted offender to serve a sentence of imprisonment by way of a drug treatment order or compulsory drug treatment detention. In New South Wales, this is by an order made by the Drug Court under Part 2A Drug Court Act 1998 (NSW) and involves a multidisciplinary assessment of the eligibility and suitability of a convicted offender for such an order.97 If the offender is eligible and suitable, the Drug Court may make a compulsory drug treatment order, the effect of which is to require the offender to comply with a compulsory drug treatment personal plan set out under s 106F Crimes (Administration of Sentences) Act 1999 (NSW). Various conditions will usually attach to a treatment plan, including conditions as to good behaviour, attending counselling and other treatment, periodic drug testing, and involvement in activities, courses, training or employment. In the event of failure to comply with conditions, the order can be revoked and the offender will be committed to a correctional centre to serve the remainder of their sentence by way of full-time detention.98 In Victoria, there is a similar option to facilitate the rehabilitation of drug or alcohol dependent offenders. The Drug Court can make a drug treatment order for a convicted offender when it imposes a sentence of imprisonment of no more than two years. There is a treatment and supervision part as well as a custodial part of the order and, while the treatment and supervision part of the order is operative, the offender must comply with all the conditions of the treatment program, including attending the Drug Court, undergoing treatment for drug or alcohol dependency, submitting to drug and alcohol testing, and attending vocational, educational, employment or other specified programs.99 The custodial part of the order may be activated if the offender fails to comply with the conditions of the treatment program; the drug treatment order can be cancelled and the offender will then serve the remainder of their sentence in custody.100 In South Australia, there is a Drug Court program in the Magistrates Court, which is a twelve-month program for convicted offenders who are dependent on illicit drugs or have a high probability of returning to illicit drug use.101 Offenders accepted into the program have a case management plan, which may involve a combination of intensive judicial supervision, strict bail conditions, rewards and sanctions, drug testing, intensive treatment and practical support.

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11 IMPRISONMENT Sentences of full-time imprisonment can be imposed as fixed terms or with a non-parole period (the minimum term that must be served in prison before an offender becomes eligible for release to parole) specified. In most cases, the court will specify a non-parole period, and in New South Wales the non-parole period must be set first and the balance of the term of the sentence must then not exceed one-third of the non-parole period unless the court decides there are special circumstances for it being longer.102 ‘Special circumstances’ have been interpreted to mean ‘those circumstances which justify enlarging in the prisoner’s favour the existing rehabilitative purpose of the legislation, that is circumstances where a sentencing judge believes that a longer period of parole supervision is warranted than would be provided by adherence to the one-third rule’. 103 Examples of factors from various cases that have qualified as ‘special circumstances’ are ‘youth’ and the need for an extended period of supervision in the community to foster rehabilitation prospects, especially if treatment for drug and/or alcohol addiction is involved (and there must be ‘significant positive signs’ that ‘rehabilitation is likely to be successful’).104 In New South Wales, there is a table of standard non-parole periods for certain categories of indictable offences.105 The standard non-parole period is applicable for offences ‘in the middle of the range of objective seriousness’106 and, following the High Court decision in Muldrock v The Queen (2011) 244 CLR 120 and subsequent legislative amendments, ‘is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender’.107 In Muldrock, the High Court determined that the practical effect of the standard non-parole period is that it is a legislative guidepost similar to the maximum sentence and is not a starting point in sentencing for a midrange offence following a conviction.108 In South Australia, a similar scheme exists, although ‘mandatory minimum nonparole periods’ in this jurisdiction apply to offences ‘at the lower end of the range of objective seriousness’ for that offence category.109 In Victoria, there are ‘baseline sentences’ specified for certain offences, which are called ‘baseline offences’. Baseline sentences are median sentences that Parliament intends should be imposed for the specified baseline offence and a court must give reasons for imposing a sentence that is equal to, greater or less than the baseline sentence for the baseline offence.110 Parole is the period of a sentence served outside of prison, usually involving strict conditions upon release, including supervision by a parole officer. It is designed to

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assist the offender in their reintegration into mainstream society. For example, the system in New South Wales is that prisoners serving total sentences of three years or less are automatically released on parole at the end of their non-parole period and courts may impose conditions on any parole order.111 Other prisoners are eligible to apply to the State Parole Authority for parole after they have served their non-parole period.112

VICTIMS’ RIGHTS, SUPPORT AND COMPENSATION During the past three decades, greater recognition of, and rights for, victims of crime has attracted increasing attention in criminal justice debates.113 In a broad sense, ‘victim’ means a person who is directly affected by a criminal act, a witness to actual or threatened crime, or a relative of a direct victim. Historically, the victim was primarily an informant and witness. However, comparatively recent legislation has shifted the focus to the question of the procedural rights of victims involved in the process of criminal justice. A Declaration of Victims Rights was first enacted in South Australia in 1985114 and these various rights and principles governing the treatment of victims are now contained in Part 2 Div 2 of the Victims of Crime Act 2001 (SA). New South Wales adopted a Charter of Victims’ Rights to similar effect in 1989, and this charter now has statutory recognition in the Victims Rights and Support Act 2013 (NSW). In Victoria, the Victims’ Charter Act 2006 (Vic) contains principles governing the response to victims of crime. Generally, the object of these legislative charters is to recognise that victims of crime have suffered harm, and to promote their rights in their dealings with and treatment by public agencies and officials.115 Most recently a Victims of Crime Commissioner, who has various functions and powers, including to advocate recognition, participation and respect of victims of crime by government departments, ‘carry out inquiries on systemic victims of crime matters’ and report and provide advice to the Attorney-General and other government departments to meet the needs of victims of crime, has been created in Victoria.116 The legislation also creates a Victims of Crime Consultative Committee with various functions, notably ‘to promote the interests of victims of crime in the administration of the justice system’.117 Provision is made for victim impact statements in all jurisdictions. Essentially, a statement is made by a victim, family victim or professional person, such as a medical specialist, psychologist or counsellor, detailing physical and/or psychological harm suffered as a direct result of a criminal offence. Table 12.2 provides an overview of the victim impact statement procedures in each jurisdiction.

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TABLE 12.2 Victim impact statement procedures in common law jurisdictions PROCEDURE/ ISSUE FOR VICTIM IMPACT STATEMENTS

CRIMES ­(SENTENCING ­PROCEDURE) ACT 1999 (NSW)

SENTENCING ACT 1991 (VIC)—PART 3 DIV 1C

CRIMINAL LAW (SENTENCING) ACT 1988 (SA)

Can be made by primary victim and family victim

s 26

s 8K (‘victim’ is broadly defined in s 3(1))118

s 7A(1)

When received and considered by court

s 28(1)—may when considered appropriate s 28(3)—must from family victim when primary victim deceased

s 8N—filed with court

s 7A(3)—will be read out to the court and defendant must be present in court throughout all proceedings (s 9B)119

Not mandatory to give statement

s 29

s 8K (‘may’)

s 7A(1) (‘may’)

May be read out in court by victim

s 30A

s 8Q s 8R (alternative arrangements)

s 7A(3)(a) (‘will’ upon request)

The needs of victims will differ in relation to making a victim impact statement. Where a statement has been made, tendered by the prosecutor and received by the court, defence counsel will be given the opportunity to cross-examine a victim in relation to the statement.120 As harm to the victim is a matter in aggravation of the offence, an unsworn statement not tested by cross-examination cannot be given substantial weight in the sentencing process.121 Compensation for injury resulting from criminal offences has been available in some form since the late 1960s. Currently, legislative schemes exist in each jurisdiction to provide support and rehabilitation for victims of crime by providing access to financial assistance and other support payments, such as for counselling services and recognition of trauma suffered as a result of an act of violence. Compensation for injury and loss can also be awarded by the court in New South Wales and Victoria. Financial assistance and support payments will ordinarily be paid to victims by the state, but there are provisions to recover these payments from offenders. Table 12.3 sets out the main features of the respective victim support payments and compensation schemes in the common law jurisdictions.

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TABLE 12.3 Victim support payments and compensation schemes in common law ­jurisdictions FEATURE OF ­LEGISLATIVE SCHEME

VICTIMS RIGHTS AND SUPPORT ACT 2013 (NSW)

VICTIMS OF CRIME ASSISTANCE ACT 1996 (VIC)

VICTIMS OF CRIME ACT 2001 (SA)

Injury to victim

s 23—from ‘act of violence’ (meaning s 19)

s 3(1)—‘act of violence’

s 17(1)—‘use of violence’, etc.

Compensation/ s 30—financial assistance victim support ss 31–33—approved payments counselling services ss 34–37—recognition payments categories A–D — ‘trauma suffered by victim of act of violence’ ss 93–95—injury to an ‘aggrieved person’ (awarded by court) ss 96–98—loss by an ‘aggrieved person’ (awarded by court)

ss 26–27—injury, death, financial assistance, funeral expenses

s 20(1)—injury, financial loss, grief, funeral expenses

Eligible claimants

ss 26–29—primary victim, parent, step-parent or guardian, secondary, family (meanings ss 20–22)

ss 7, 9, 11—primary victim, secondary, related

s 17—immediate victim, domestic partner, dependants

Maximum amount

Approved counselling services—cl 6 Victims Right and Support Regulation 2013 (NSW). Financial Assistance—cll 7–11. Recognition Payments cl 12—Cat A $15,000, B $10,000, C $5,000, and D $1,500.

ss 8 & 8A—$60,000 and special financial assistance (primary victims); ss 10–10A— $50,000 and additional assistance (secondary victims); s 12—$100,000 (cumulative total for all related victims of a primary victim)

s 20(3)—$50,000 (injury, financial and non-financial loss); $10,000 (grief)

Application

ss 38–40—within 2 years.

s 29—within 2 years

s 18—3 years or 12 months (death) (Continued )

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TABLE 12.3 Victim support payments and compensation schemes in common law ­jurisdictions (Continued ) FEATURE OF ­LEGISLATIVE SCHEME

VICTIMS RIGHTS AND SUPPORT ACT 2013 (NSW)

VICTIMS OF CRIME ASSISTANCE ACT 1996 (VIC)

VICTIMS OF CRIME ACT 2001 (SA)

Assessed/ heard by

ss 42–43—Commissioner of Victims Rights

ss 31–56—Victims of Crime Assistance Tribunal

s 20—District Court

Appeal/ Reviews

s 49—internal review s 51—Civil and Administrative Tribunal

ss 59–59A— Victorian Civil and Administrative Tribunal

s 24—Full Court of Supreme Court

Recovery of compensation / victim support payments from offenders

Part 5 ss 57–90 (victims support payments); Part 6 ss 101–103 (enforcement of court orders); Part 7 ss 106–108 (victims support levies)

ss 87A–87B Sentencing Act 1991 (Vic)122

ss 19 (joinder of offender), 28; s 32 (levy to Victims of Crime Fund)

Important references For more extensive coverage of the substantive law relating to sentencing and punishment, you should consult the following textbooks. Mirko Bagaric and Richard Edney, Sentencing in Australia (3rd edn, 2016). David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws (6th edn, 2015) Chapter 14 ‘Sentencing’ 1224–1337. Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (5th edn, 2014) Chapter 7 ‘Punishment and Penalty’ 202–36 and Chapter 8 ‘Sentencing’ 237–80.

In addition, you should obtain and read the various legislative provisions identified and discussed above, as relevant to your particular jurisdiction.

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ASSESSMENT PREPARATION Active learning questions 1 Retributivist, or desert-based, theories are often described as ‘backward looking’, in that they focus on the offence and argue that the state has a right to and a duty to punish the offender by virtue of their ‘culpability’ for the offence. After carefully considering the various purposes of punishment, do you think a retributivist approach to sentencing, such as that encompassed by the contemporary ‘just deserts’ theory, is preferable to the ‘forward looking’ utilitarian approaches to sentencing, such as rehabilitation or deterrence? 2 What benefits are there in offering an offender a discount on their sentence for a timely guilty plea? Should such discounts be specifically quantified by the sentencing judge? 3 ‘It was felt by many of the [organisations providing services to victims of crime] that … long court delays militated against effective treatment for victims of crime as they could not resolve the matter quickly. Many felt that the system was itself re-victimising these vulnerable people through its processes.’123 Outline the support, compensation and other services available to victims of crime in your jurisdiction. Are these services adequate in the context of an adversarial and ‘slow’ criminal justice system?

Problem questions Assume the following facts. After a heavy drinking session at a local hotel, Andrew became involved in a verbal altercation with another patron, Barry, who was leaving the hotel at the same time as Andrew. After yelling abuse at Barry, Andrew swung several punches at Barry, one of which connected with Barry’s mouth. As a result, Barry suffered slight swelling of his bottom lip, for which he did not seek medical attention. Andrew pleaded guilty at the Magistrates (or Local) Court to a charge of ‘assault’ and the following information was provided to the magistrate about Andrew by the Legal Aid solicitor who represented him in court: •• twenty-two years of age and of Anglo-Australian heritage •• seasonally employed and working as an unskilled labourer •• single with no dependants •• sharing rental accommodation with friends and paying $75 rent per week •• one previous conviction for drink-driving (low-range blood alcohol concentration) two years ago, which resulted in a fine of $350 and a licence disqualification of three months •• binge drinker, who on the night of this incident had been drinking heavily because of a recent breakdown in an eighteen-month relationship with his girlfriend •• victim was a stranger to him. 1 How would you rate Andrew’s overall level of criminality for this offence? VERY LOW

LOW

MODERATE

HIGH

VERY HIGH

1

2

3

4

5

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2 Andrew’s alcohol consumption in this scenario is a significant factor in determining his overall level of criminality. STRONGLY DISAGREE

DISAGREE

NEUTRAL

AGREE

STRONGLY AGREE

1

2

3

4

5

3 The level of injury caused to the victim is a significant factor in determining Andrew’s overall level of criminality. STRONGLY DISAGREE

DISAGREE

NEUTRAL

AGREE

STRONGLY AGREE

1

2

3

4

5

4 What other factors do you consider relevant in determining Andrew’s overall level of criminality? In comparing the relative significance of each relevant factor, can you assign weight to each factor? 5 From available sentencing options in your jurisdiction, what sentence would you impose as most appropriate to Andrew in this scenario? State your reasoning. For suggested solutions to problem questions, please visit .

Notes 1 See Karen Gelb, ‘Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing’ in Arie Frieberg and Karen Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (2008) 68–82; Andrew von Hirsch, ‘Law and Order’ in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd edn, 1998) 410–23; and Russell Hogg and David Brown, Rethinking Law and Order (1998) 18–44. 2 For a useful recent consideration of the purposes of sentencing, see New South Wales Law Reform Commission (NSWLRC) Sentencing (Report 139, 2013) [2.2]–[2.119]. 3 Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (5th edn 2014) 210. 4 This is derived from the utilitarian political and moral philosophy expounded by Jeremy Bentham (1748–1832). In relation to punishment, see H L A Hart, Freedom and Responsibility: Essays in the Philosophy of Law (1968), Nigel Walker, Why Punish? (1991) and Barbara Hudson, Understanding Justice (1996) 3, 18–37. 5 See Don Weatherburn, Law and Order in Australia: Rhetoric and Reality (2004) 124–5. 6 See Andrew von Hirsch and Lila Kazemian, ‘Predictive Sentencing and Selective Incapacitation’ in Andrew von Hirsch, Andrew Ashworth and Julian Roberts (eds), Principled Sentencing: Readings on Theory and Policy (3rd edn, 2009), 95–101; and Martin Moerings ‘The Risk of the Persistent Offender and the Special Security Measure’ in Marijke Malsch and Marius Duker (eds), Incapacitation: Trends and New Perspectives (2012), 63–76. See also Barbara Thompson, Recidivism in New South Wales: General Study (1995); Jason Payne, Recidivism in Australia: Findings and Future Research (Australian Institute of Criminology Research and Public Policy Series No. 80, 2007); and Judy Trevena and Don Weatherburn (2015), ‘Does the First Prison Sentence Reduce the Risk of Further Offending’, New South Wales Bureau of Crimes Statistics and Research Crime and Justice Bulletin 187.

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7 Julian Roberts and Andrew Ashworth, ‘Deterrence’ in von Hirsch, et al. (eds), above n 6, 40. 8 New South Wales Law Reform Commission (NSWLRC), Sentencing (Discussion Paper No 33, 1996) [3.6]. 9 See R v Radich [1954] 1 NZLR 86, 87, R v Rushby [1977] 1 NSWLR 594, 598 and DPP (Cth) v El Karhani (1990) 21 NSWLR 370, 378. 10 See R v Miria [2009] NSWCCA 68 where Grove J stated: ‘There is no authority permitting a judge to dismiss general deterrence as a factor for sentence assessment … the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system’ at [11]–[12]. 11 Andrew Ashworth, ‘Rehabilitation’, in von Hirsch et al. (eds), above n 6, 2. 12 Ibid 1. The ‘negative research findings’ were primarily those of Robert Martinson, who found that ‘with few isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism’—‘What Works? Questions and Answers about Prison Reform’ (1974) 35 The Public Interest 22, 25. 13 See Peter Raynor, ‘Assessing the Research on “What Works”’, in von Hirsch et al. (eds), above n 6, 19–27. 14 See John Braithwaite, Crime, Shame and Reintegration (1989) 80–3. Also, see Kathleen Daly, ‘Mind the Gap: Restorative Justice in Theory and Practice’, in von Hirsch et al. (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (2003) 221–36 and Kathleen Daly, ‘The Limits of Restorative Justice’, in Dennis Sullivan and Larry Tifft (eds), Handbook of Restorative Justice: A Global Perspective (2006) 134–46. 15 Old Testament—Exodus 21, 23–25; Leviticus 24, 17–22. 16 The work that played a major role in the revival of the retributivist sentiment inherent in the ‘just deserts’ theory of punishment was Andrew von Hirsch’s Doing Justice: The Choice of Punishments (Report of the Committee for the Study of Incarceration, 1976). 17 See Norval Morris, The Future of Imprisonment (1974); Michael Tonry, ‘Proportionality, Parsimony and Interchangeability of Punishments’, in Antony Duff, Sandra Marshall, Rebecca Emerson Dobash and Russell Dobash (eds), Penal Theory and Practice: ­Tradition and Innovation in Criminal Justice (1994); and Richard Frase, ‘Limiting Retributivism’, in von Hirsch et al. (eds), above n 6, 135–42. 18 NSWLRC, above n 2, [2.44]–[2.69]. 19 Australian Law Reform Commission (ALRC), Same Crime Same Time: Sentencing of Federal Offenders (Report No 103, 2006), [4.32]–[4.48]. 20 NSWLRC, above n 2, [3.1]. 21 See, for example, R v Visconti [1982] 2 NSWLR 104. 22 R v Geddes (1936) 36 SR(NSW) 554; Veen v The Queen [No 1] (1979) 143 CLR 458; Veen v The Queen [No 2] (1988) 164 CLR 465; Hoare v The Queen (1989) 167 CLR 348. 23 See R v Cuthbert (1967) 86 WN 272; R v Rushby [1977] 1 NSWLR 594; R v Valentini [1980] 44 FLR 416; Veen v The Queen [No 1] (1979) 143 CLR 458; and Veen v The Queen [No 2] (1988) 164 CLR 464, 472–474. 24 See Richard Fox, ‘The Meaning of Proportionality in Sentencing’ (1994) 19 Melbourne University Law Review 489, 495. 25 ALRC, above n 19, [5.9]. See Webb v O’Sullivan [1952] SASR 65, 66. 26 See above n 17. 27 NSWLRC, above n 2, [3.85].

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28 Ibid [3.88]. 29 See also Postiglione v The Queen (1997) 189 CLR 295; Contin v The Queen [2012] VSCA 247; Richardson v The Queen [2010] SASC 88; and R v Visconti [1982] 2 NSWLR 104. 30 See Crimes (Sentencing Procedure) Act 1999 (NSW) s 55; Sentencing Act 1991 (Vic) ss 14–17; and Criminal Law (Sentencing) Act 1988 (SA) ss 30–31. 31 A line of cases since Pearce reflects the contemporary practice in relation to application of the totality principle: R v AEM [2002] NSWCCA 58; R v Gorman (2002) 137 A Crim R 326; R v Basha (2003) 138 A Crim R 245; R v Vu [2003] NSWCCA 316; Johnson v The Queen (2004) 205 ALR 346; R v MAK (2006) 167 A Crim R 159; R v WC [2008] NSWCCA 268; Paxton v R [2011] NSWCCA 242 and Hennessy v R [2012] NSWCCA 241. 32 See Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A and Criminal Law (Sentencing) Act 1988 (SA) s 18A. 33 R v Wurramarbra (1979) 1 A Crim R 291; R v Ollis (1986) 21 A Crim R 256; R v Formosa [2005] NSWCCA 363; Pham v R [2009] NSWCCA 25; Jimmy v R [2010] NSWCCA 60; Green v R (2011) 244 CLR 462; [2011] HCA 49. 34 See Crimes (Sentencing Procedure) Act 1999 (NSW) ss 36–42; Criminal Law (Sentencing) Act 1988 (SA) ss 29A–29C and Sentencing Act 1991 (Vic) ss 6AA–6AG. 35 The first guideline judgment was in R v Jurisic (1998) 45 NSWLR 209 for the offences of ‘dangerous driving causing death or grievous bodily harm’ (later refined in R v Whyte (2002) 55 NSWLR 252). Subsequently, guideline judgments have been promulgated for ‘armed robbery’ (R v Henry (1999) 46 NSWLR 346); ‘break, enter and steal’ (Re Attorney General’s Application [No 1]; R v Ponfield (1999) 48 NSWLR 327); discount for guilty pleas (R v Thomson; R v Houlton (2000) 49 NSWLR 383); taking offences into account on a Form 1 (Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180); and ‘driving with the high range prescribed concentration of alcohol’ (Application by the Attorney-General under s 37 Crimes (Sentencing Procedure) Act 1999 No 3 of 2002 (2004) 61 NSWLR 305). A guideline judgment was given in R v Wong; R v Leung (1999) 48 NSWLR 340 in relation to the offence of ‘importation of prohibited narcotic drugs’; however, a majority of judges in the High Court struck down the guideline as an invalid exercise of judicial power, which has cast doubt over quantitative guideline judgments for federal offences—see Wong v The Queen; Leung v The Queen (2001) 207 CLR 584. 36 Sentencing guidelines have been established for the offence of ‘driving while disqualified’ in Police v Cadd (1997) 69 SASR 150 and for ‘armed robbery’ in R v Place (2002) 81 SASR 395; but in R v Payne (2004) 89 SASR 49, the court refused to establish a sentencing guideline for the offence of ‘causing death by dangerous driving’ and made some general observations that guidelines were of limited utility. 37 The first and only sentencing guideline judgment in Victoria was in Boulton v R [2014] VSCA 342 wherein the Court of Appeal established guidelines for the use of community correction orders as a new sentencing option. 38 John Anderson, ‘Leading Steps Aright: Judicial Guideline Judgments in New South Wales’ (2004) 16(2) Current Issues in Criminal Justice 140, 146. 39 See R v Barri [2004] NSWCCA 221; R v Crowley [2004] NSWCCA 256 and R v Falls [2004] NSWCCA 335 as to the use of an agreed statement of facts, including that the prosecution ‘should responsibly agree to succinct statements of facts encompass-

CHAPTER 12: SENTENCING AND PUNISHMENT

ing the matters that could have been proved in evidence illustrating the offender’s ­criminality’ (per Greg James J in R v Barri at [58]). 40 R v O’Neill [1979] 2 NSWLR 582; R v Martin [1981] 2 NSWLR 640 and R v Olbrich (1999) 199 CLR 270. 41 The Queen v De Simoni (1981) 147 CLR 383. Also, see R v Sherpa (2001) 34 MVR 345. 42 See R v H (1981) 3 A Crim R 53 and R v JCW (NSWCCA 6 May 2000). See also Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(c). 43 See Evidence Act 1995 (NSW) s 178; Evidence Act 2008 (Vic) s 178 and Evidence Act 1929 (SA) ss 42–43 as to formal certificates of conviction. 44 See Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32–35; Sentencing Act 1991 (Vic) s 100 and Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(b). 45 In New South Wales there is a guideline judgment in this regard—see Attorney-­ General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180. 46 Crimes (Sentencing Procedure) Act 1999 (NSW) s 35(4); Sentencing Act 1991 (Vic) s 100(10). 47 See Ibbs v The Queen (1987) 163 CLR 447; Veen v The Queen [No 2] (1988) 164 CLR 465; R v Twala (Unreported, CCA (NSW), 4 November 1994); R v Whyte [2000] SASC 93; and Hudson v R; DPP v Hudson [2010] VSCA 332. 48 See R v Fajka [2004] NSWCCA 166. See also Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(d)–(e) and Sentencing Act 1991 (Vic) s 5(2)(c), (daa), (da), (db). 49 In relation to the New South Wales provision, see R v Wickham [2004] NSWCCA 193; R v House [2005] NSWCCA 88; R v Tadrosse [2005] NSWCCA 145 and R v Johnson [2005] NSWCCA 186. 50 See Veen v The Queen [No 2] (1988) 164 CLR 465, 477. 51 See Crimes (Sentencing Procedure) Act 1999 (NSW) s 22; Sentencing Act 1991 (Vic) ss 5(2)(e), 6AAA; and Criminal Law (Sentencing) Act 1988 (SA) ss 10(1)(g), 10B, 10C. 52 See R v Thomson; R v Houlton (2000) 49 NSWLR 383, where the discount was ­quantified as 10–25% depending on the timing of the plea, and Criminal Law ­(Sentencing) Act 1988 (SA) ss 10B–10C where the discretionary discount ranges from 10% to 40% depending on the particular stage of the criminal process when the guilty plea is entered. 53 Note that special provision is made in Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5A) in relation to the use of prior good character in child sexual offences. Also, in Criminal Law (Sentencing) Act 1988 (SA) s 10(2)(c) general and personal deterrence is emphasised as a paramount consideration in any offence involving sexual exploitation of a child and in s 10(3)(ba) a court must not have regard to ‘the good character or lack of previous convictions of the defendant’ in determining a sentence for a child sexual offence where this was of assistance in the commission of the offence. 54 See R v Edwards (1996) 90 A Crim R 510; R v Lo and Ouyang [2004] NSWCCA 382; Markovic v R [2010] VSCA 105; and R v Hill (2011) 110 SASR 588. 55 See R v Girard [2004] NSWCCA 170 and R v X [2004] NSWCCA 93. Also, note in s 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA) ‘the probable effect any ­sentence … would have on dependants of the defendant’ is a matter to which the court should have regard in determining sentence.

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56 R v Nguyen [2006] NSWCCA 369, [27]. See also Roberts v R [2007] NSWCCA 112; and R v MacLeod [2013] NSWCCA 108. 57 See AB v The Queen (1999) 198 CLR 111; Cameron v The Queen (2002) 209 CLR 339, R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Whyte (2002) 55 NSWLR 252; Markarian v The Queen (2005) 228 CLR 357; and Muldrock v The Queen (2011) 244 CLR 120. 58 See R v Williscroft [1975] VR 292; Veen v The Queen (No 2) (1988) 164 CLR 465; and R v Young [1990] VR 951. 59 Sally Traynor and Ivan Potas, ‘Sentencing Methodology: Two-tiered or Instinctive Synthesis?’ (2002) 25 Sentencing Trends & Issues 1, 2. 60 See particularly R v Young [1990] VR 951; AB v The Queen (1999) 198 CLR 111 per McHugh J at 120–3 and Markarian v The Queen (2005) 228 CLR 357 per McHugh J at 377–90. 61 Per Gleeson CJ, Gummow, Hayne and Callinan JJ at 375. 62 R v Chivers [2005] WASCA 97 per Steytler P at [27]. This is especially the case in South Australia where specific percentage discounts for a plea of guilty are required by statute—see ss 10B and 10C Criminal Law Consolidation Act 1935 (SA) and above n 52. 63 NSWLRC, above n 2, [3.89]–[3.94]. 64 Also, see Criminal Law (Sentencing) Act 1988 (SA) s 16 for comparable criteria. As to the interpretation of the s 10(3) criteria and the scope of the discretion available in the practical operation of this sentencing option in New South Wales, see Thorneloe v Filipowski [2001] NSWCCA 213; R v Paris [2001] NSWCCA 83; cf R v Piccin (No 2) [2001] NSWCCA 323. 65 See R v Bugmy [2004] NSWCCA 258 for a statement of the three principles to be observed in specifying the appropriate conditions to be attached to a bond. 66 See Criminal Procedure Act 1986 (NSW) ss 345–350 and Criminal Procedure Regulation 2010 (NSW) Part 6, regs 28–54, Part 7 regs 55–87 and Part 8 regs 88–100. Circle sentencing involves convening the court in a community setting where the Aboriginal community members, magistrate, prosecutor, victim, other community representatives and Aboriginal offender sit in a circle to discuss the offence, offender, background and consequences of the offence, from which the magistrate determines an appropriate sentence for the offender. 67 This is taken from Griffiths v The Queen (1977) 137 CLR 293, where the High Court held that ‘the court has inherent jurisdiction to bind an offender over to be of good behaviour for a specified period’. 68 See R v Palu [2002] NSWCCA 381 as to the appropriate use of the s 11 procedures in New South Wales. 69 Crimes (Sentencing Procedure) Act 1999 (NSW) s 17. 70 Sentencing Act 1991 (Vic) s 110 and Monetary Units Act 2004 (Vic) ss 5(3) and 6(b). The latest rate for a penalty unit is available at and applies from 1 July 2016 to 30 June 2017. 71 Acts Interpretation Act 1915 (SA) s 28A. 72 See Fines Act 1996 (NSW) s 58 for a useful summary of the fine enforcement action available in this jurisdiction. 73 Sentencing Act 1991(Vic) s 48C. See below where this sentencing option is outlined in detail.

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74 Sentencing Act 1991 (Vic) ss 64–68. 75 Sentencing Act 1991 (Vic) ss 69D–69Q. 76 Crimes (Sentencing Procedure) Act 1999 (NSW) s 8(2); Sentencing Act 1991 (Vic) ss 69O, 69Q; Criminal Law (Sentencing) Act 1988 (SA) s 47(1)(a). 77 Examples are participation in development programs and undergoing assessment for drug or alcohol use—see Crimes (Sentencing Procedure) Act 1999 (NSW) s 90. 78 See, for example, Crimes (Administration of Sentences) Act 1999 (NSW) s 115 and Criminal Law (Sentencing) Act 1988 (SA) s 71. 79 Crimes (Administration of Sentences) Act 1999 (NSW) s 81(2) and Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 186. 80 Crimes (Administration of Sentences) Act 1999 (NSW) s 81(4) and Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 187. 81 Crimes (Administration of Sentences) Act 1999 (NSW) s 89. 82 Crimes (Administration of Sentences) Act 1999 (NSW) ss 90–91. 83 Boulton v The Queen [2014] VSCA 342 at [1]. 84 Ibid [2]. 85 Sentencing Act 1991 (Vic) s 38(1). Note that the Magistrates’ Court has the power to make an order for a period of up to five years if the offender is convicted or found guilty of three or more offences. 86 Sentencing Act 1991 (Vic) ss 47, 48C–48LA. 87 Sentencing Act 1991 (Vic) s 44. Note s 5(4C): a court must not impose a sentence involving the confinement of the offender unless it considers that the purposes for which the sentence is imposed cannot be achieved by a community correction order with conditions attached. 88 Sentencing Act 1991 (Vic) ss 48M–48N. 89 Sentencing Act 1991 (Vic) ss 83AD, 83AS. 90 Boulton v The Queen [2014] VSCA 342, [131]–[135] and Appendix 1, Part 1 cl 2. 91 Criminal Law (Sentencing) Act 1988 (SA) s 38(1)–(4). 92 Crimes (Sentencing Procedure) Act 1999 (NSW) s 12(1). 93 Crimes (Sentencing Procedure) Act 1999 (NSW) s 98(3); Criminal Law (Sentencing) Act 1988 (SA) s 58(3)–(4). 94 See Crimes (Sentencing Procedure) Act 1999 (NSW) ss 76–77. Essentially, serious ­violent, sexual, drugs and firearms offences are excluded from the home detention option. Also, a history of domestic violence will preclude an offender from this sentencing option. 95 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 78, 80–81. 96 See R v Jurisic (1998) 45 NSWLR 209. 97 These courts, often referred to as problem-oriented courts, have been created upon principles of therapeutic jurisprudence—see Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (2009), Chapter 9 ‘Problem-oriented Courts’ 138–69. 98 Crimes (Administration of Sentences) Act 1999 (NSW) ss 106Q–106S. 99 Sentencing Act 1991 (Vic) ss 18ZF–18ZG. 100 Sentencing Act 1991 (Vic) ss 18ZL–18ZP. 101 Details of this Drug Court program in the Adelaide Magistrates Court are available at .

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102 103 104 105 106

Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2). R v Moffitt (1990) 20 NSWLR 114. R v Carter [2003] NSWCCA 243. The table is set out following Crimes (Sentencing Procedure) Act 1999 (NSW) s 54D. Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A. See also R v Way [2004] NSWCCA 131 for an interpretation of the meaning of this phrase. 107 Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B(2). 108 Muldrock v The Queen (2011) 244 CLR 120, 132. 109 Criminal Law (Sentencing) Act 1988 (SA) s 32A. 110 Sentencing Act 1991 (Vic) ss 5A–5B. 111 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 50–51. 112 See Crimes (Administration of Sentences) Act 1999 (NSW) Part 6. In other jurisdictions, see Corrections Act 1986 (Vic) Part 8 Div 5 and Correctional Services Act 1982 (SA) Part 6. 113 See, for example, Brown et al., Criminal Laws (6th edn, 2015) 1237–45. 114 Criminal Law Consolidation Act 1935 (SA) s 301 (since repealed). 115 See Victims of Crime Act 2001 (SA) s 3; Victims Rights and Support Act 2013 (NSW) s 6 and Victims’ Charter Act 2006 (Vic) ss 1 and 4. 116 Victims of Crime Commissioner Act 2015 (Vic) s 13. There is also a Commissioner for Victims’ Rights in South Australia established under the Victims of Crime Act 2001 (SA) Part 3 Division 2, ss 16–16E—see . 117 Victims of Crime Commissioner Act 2015 (Vic) s 32. 118 See also Victims’ Charter Act 2006 (Vic) s 13. 119 See also Victims of Crime Act 2001 (SA) s 10, which provides that ‘a victim is entitled to have any injury, etc. suffered as a result of the offence considered by the sentencing court before it passes sentence’. 120 See Sentencing Act 1991 (Vic) ss 8O, 8P and 8S (alternative arrangements for ­examination). 121 R v Slack [2004] NSWCCA 128 per Sperling J at [58]–[62]. 122 Also, under the Sentencing Act 1991 (Vic) Part 4, Div 2, Subdiv 1 (ss 85A–85M), procedures are available to the court that finds a person guilty or convicts a person of an offence to make an order against that person for payment of compensation for the victim’s pain and suffering, and medical expenses. 123 From Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Australian Institute of Criminology Research and Public Policy Series No 19, 1999) 97.

361

TABLE OF CASES Bold entries indicate ‘Cases to Remember’ AB v The Queen (1999) 198 CLR 111  358 Adanguidi v R [2006] NSWCCA 404  325 Addison (1993) 70 A Crim R 213, 217  237, 238 Ahern v The Queen (1988) 165 CLR 87  277 Aidid v R (2010) 25 VR 593; [2010] VSCA 56  179 Alliston v The Queen (2011) 217 A Crim R 323  237, 238 Al-Qassim v The Queen [2009] VSCA 192  279 Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166  73 Ancuta v R (1990) 49 A Crim R 307  279 Anderson v Judges of District Court of NSW (1992) 27 NSWLR 701  213 Anic v R (1993) 68 A Crim R 313  210 Ansari v The Queen (2010) 241 CLR 299  278 Aoun v R [2011] NSWCCA 284  237 Apps v R [2006] NSWCCA 290  160 Aruthilakan v The Queen [2003] HCA 74  178 Astor v Hayes (1988) 38 A Crim R 219  211 Attorney General for New South Wales v Milat (1995) 37 NSWLR 370  70 Audsley v The Queen (2013) 228 A Crim R 98  212 Australian Iron & Steel Pty Ltd v Environment Protection Authority (No 2) (1992) 29 NSWLR 497 42 B v R [2015] NSWCCA 103  323 Banditt v The Queen (2005) 224 CLR 262  41, 128, 135, 150 Barker v The Queen (1983) 153 CLR 338 185, 205, 213 Barrett v Coroner’s Court of South Australia (2010) 108 SASR 568  178 Barton v Armstrong [1969] SASR 205; R v Wilson [1955] 1 All ER 744  125 Batcheldor v R; Walsh v R [2014] NSWCCA 252  127 Beck v State of New South Wales [2012] NSWSC 1483 77, 85 Bedi v The Queen (1993) 61 SASR 269, 273  319 Billing v Pill [1954] 1 QB 70  210 Blackwell v The Queen (2011) 81 NSWLR 119  20, 28 Boulton v The Queen [2014] VSCA 342  346, 356 Bourne v Samuels (1979) 21 SASR 591  236 Branson v South Australian Police Force (1993) 60 SASR 325  319 Bratty v Attorney General for Northern Ireland [1963] 3 All ER 523  324, 325 Braysich v The Queen (2011) 243 CLR 434  43 Britten v Alpogut [1987] VR 929  246, 252, 276 Bruce v The Queen (1987) 61 ALJR 603  212 Buck v R [1983] WAR 372

362

Table of Cases

Buckman v The Queen (2013) 280 FLR 219  240 Buiks v Western Australia (2008) 188 A Crim R 362  239 Burns v The Queen (2012) 246 CLR 334  40, 153, 164–5, 178, 180 Byrne v Hebden [1913] QSR 233  126 Cameron v The Queen (2002) 209 CLR 339  358 Campbell v R (2014) 312 ALR 129  179 Canterbury Bankstown RLFC v Rogers; Bugden v Rogers (Unreported, CA (NSW), 24 September 1993)  108 Caralis v Smyth (1988) 34 A Crim R 193  32 Carrott v The Queen [2013] VSCA 90  211 Cassell v The Queen (2000) 201 CLR 189  42 Castle v Olen (1985) 3 NSWLR 26  238 Cato [1976] 1 WLR 110  179 CB v DPP (NSW) (2014) 240 A Crim R 45  41 CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47  322 Chen v R [2013] NSWCCA 116  41 Cheng v The Queen (2000) 203 CLR 248, 241 Chhay v The Queen (1994) 72 A Crim R 1 281, 294, 320, 321 Chief Executive Officer of Customs v Camile Trading and Ors [2001] NSWSC 1075  279 Cheikho v R  277 Chishimba v R [2010] NSWCCA 228  278, 279 Chugg v Paci c Dunlop (1990) 95 ALR 481  42 Churchill v Walton [1967] 1 All ER 497  278 CJ v R [2012] NSWCCA 258  324 Clarke v R [2008] NSWCCA 36  320 Coelho v Durbin (Unreported, NSWSC, Badgery Parker K, 29 March 1993)  212 Coleman v Power (2004) 220 CLR 1  84 Coles [1984] 1 NSWLR 726  237 Colosimo v DPP (NSW) (2005) 64 NSWLR 645  99 Colosimo v DPP (NSW) [2006] NSWCA 203  319 Commissioner of Police v Allen (1984) 14 A Crim R 244, 252  98 Commissioner of Police v Gabriel [2004] NSWSC 31  98 Commissioner of Police v Jackson [2015] NSWSC 96  98 Commissioner of Police v Langosch [2012] NSWSC 499  98 Commissioner of Police v Ridgewell [2014] NSWSC 1138  98 Commissioner of Police v Rintoul [2003] NSWSC 662  98 Considine v Kirkpatrick [1971] SASR 73  126 Contin v The Queen [2012] VSCA 247  356 Coulter v R [2013] NSWCCA 175  320 Craig v State of South Australia (1995) 184 CLR 163  70 Crawford v R [2008] NSWCCA 166  319 Croton v The Queen (1967) 117 CLR 326  187, 210

Table of Cases

Croxford v R (2011) 34 VR 277  279 Cuu Nguyen v R (2008) 181 A Crim R 72  322 Dambitis v R (2013) 41 VR 330  264, 278, 279 Da-Pra v R [2014] NSWCCA 211  324 Darby v DPP (NSW) (2004) 61 NSWLR 558  105 Davey v Lee [1967] 2 All ER 423  276 Davis v R (1990) 5 WAR 269  237 Dawson v The Queen (1961) 106 CLR 1  280 Dean v Phung [2012] NSWCA 223  149 Dendic and Mazzeo v R (1987) 34 A Crim R 40  221, 237 Devine v R (1982) Tas R 155  126 Dib and Dib v R (1991) 52 A Crim R 64  219, 237 Dietrich v The Queen (1992) 177 CLR 292  51 Donaldson v Bromby (1982) 60 FLR 126  71 DPP v Carr (2002) 127 A Crim R 151 71 DPP v CAD [2003] NSWSC 196 71 DPP v JWH (Unreported, SC (NSW), 17 October 1997)  125 DPP v Morgan [1976] AC 182  132, 133 DPP v Newbury and Jones [1977] AC 500  179 DPP v Nock [1978] 2 All ER 654  257 DPP v Sadler [2013] NSWSC 718  73 DPP v Smith [1961] AC 290  179 DPP v Stonehouse [1978] AC 55 245, 250–1, 278 DPP v Vella [1999] NSWSC 49  174 DPP v Withers [1975] AC 842  277 DPP (Cth) v El Karhani (1990) 21 NSWLR 370, 378  355 DPP (NSW) v Elskaf [2012] NSWSC 2  73 DDP (NSW) v Lucas [2014] NSWSC 1441  98 DPP (NSW) v Mawad [2015] NSWCCA 227  72 DPP (NSW) v Tikomaimaleya [2015] NSWCA 83  72 DPP (NSW) v Yeo (2008) 188 A Crim R 82  174 DPP (Vic) v Brownlie and Brownlie (a pseudonym) [2015] VSCA 147  191, 211 DPP (Vic) v Russell [2014] VSCA 308  99 DPP (Vic) v Singleton (2010) 29 VR 351  179 DPP (Vic) v TY (2006) 14 VR 430  179 Dunkley-Price v The Queen [2015] VSCA 310  178 Dunn v R (1988) 32 A Crim R 203  237 Eade (2002) 131 A Crim R 390  238 Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173  151 Eager v Smith (1988) 38 A Crim R 272  239

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364

Table of Cases

El-Haddad v R (2015) 88 NSWLR 93  232 Elomar v R  277 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 20, 30–1, 105, 109 Falconer v Pederson [1974] VR 185  222, 237 Ferguson v Walkley (2008) 17 VR 647; [2008] VSC 7  84 Field v Receiver of Metropolitan Police [1907] 2 KB 853  92 Fitzgerald v Kennard (1995) 38 NSWLR 184  139, 140 Flanagan v R [2013] NSWCCA 320  319 Forbes v Traders’ Finance Corporation Ltd (1971) 126 CLR 429  240 Foster v The Queen (1967) 118 CLR 117 185, 195–6 FP v The Queen (2012) 224 A Crim R 82  151 Frazer v R (2002) 128 A Crim R 89  237 Gall v R [2015] NSWCCA 69  280 Gardner v Ackroyd [1952] 2 QB 743  276 Gauci v Driscoll [1985] VR 428  238 Gedeon v The Queen (2013) 280 FLR 275  240 Geitz v The Queen (2013) 238 A Crim R 156  213 Gerakiteys v The Queen (1984) 153 CLR 317  245, 256, 277 Getachew v The Queen (2012) 248 CLR 22  150 Gillard v The Queen (2003) 219 CLR 1  278, 280 Gillard v R (2014) 308 ALR 190 128, 133–4 Giorgianni v The Queen (1985) 156 CLR 473  181, 245, 267–8, 278, 279 Giretti v R (1986) 24 A Crim R 112  237 Goodridge v R [2014] NSWCCA 37  324 Green v The Queen (1997) 191 CLR 334  296, 297 Green v R (2011) 244 CLR 462  356 Griffin v Marsh (1994) 34 NSWLR 104  34 Griffiths v The Queen (1977) 137 CLR 2  358 Grozdanov v The Queen (2012) 34 VR 426  239 Guthridge v R (2010) 27 VR 452  278 GW v The Queen (2015) 20 DCLR (NSW) 236  42 Haggard v Mason [1976] 1 All ER 337  237 Haken v Johnson (Unreported, NSWSC, Wood J, 15 October 1993)  213 Hamilton v Whitehead (1988) 166 CLR 122  35 Hammond v The Queen (2013) 85 NSWLR 313 77, 88 Hanna v Kearney & Commonwealth DPP [1998] NSWSC 227  73 Haoui v R (2008) 188 A Crim R 331  126, 179 Hardman v Minehan & DPP (2003) 57 NSWLR 390  97 Harris v Harrison [1963] Crim LR 497  211

Table of Cases

Hasan v R  277 Haughton v Smith [1975] AC 476  252, 257 Hawi v R [2014] NSWCCA 83  278 Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120  42 Hayes v Fries (1988) 49 SASR 184  210 He Kaw Teh v The Queen (1985) 157 CLR 523  23, 31–2, 34, 42, 214, 216 Hennessy v R [2012] NSWCCA 241  356 Hibbert v McKiernan [1948] 2 KB 142  210 Hickling v Laneyrie (1991) 21 NSWLR 730  42 Hoare v The Queen (1989) 167 CLR 348  355 Holmes v DPP [1946] AC 588  320 Hone v Police (2013) 115 SASR 401  319 Hubbard v Pitt [1976] 1 QB 142  90 Hudd v R [2013] NSWCCA 57  179 Huggins v Police [2001] SASC 394  319 Hunter v Police (2011) 111 SASR 411, 420  319 Huynh v The Queen (2013) 87 ALJR 434  264, 278 Ibbs v The Queen (1987) 163 CLR 447  357 Ilich v The Queen (1987) 162 CLR 110  187, 190, 209, 210 Inegbedion v R [2013] NSWCCA 291  276 Jamal v R (2014) 316 ALR 206  277 Jessen v Police (2011) 112 SASR 1  319 Jiminez v The Queen (1992) 173 CLR 572  22, 181 Jimmy v R [2010] NSWCCA 60  356 Jitjarden v Thompson (1995) 38 NSWLR 611  99 JM (A Minor) v Runeckles (1984) 79 Cr App R 255  42 JM v R [2015] NSWSC 978  72 Johns v The Queen (1980) 143 CLR 108  280 Johnson v The Queen (2004) 205 ALR 346  356 Jones v Stephens (Unreported, SC (NSW), 8 October 1985)  238 KA v R [2015] NSWCCA 111  278 Kalajzich & Orrock v R (1989) 39 A Crim R 415  259 Kamara v DPP [1974] AC 104  258 Kanaan v R [2006] NSWCCA 109  278 Kapeliotis (1995) 82 A Crim R 300  277 Kennison v Daire (1986) 160 CLR 129  211 Kerrison v Richards [2013] ACTSC 262  211 Kesavarajah v R (1994) 181 CLR 230  305 Khammash v The Police [2001] SASC 52  319

365

366

Table of Cases

King v The Queen (2012) 245 CLR 588 153, 173 Knight (1988) 35 A Crim R 314  106 Knight v R (1992) 175 CLR 495  126, 276 Kolosque v Miyazaki (Unreported, NSWSC, 17 February 1995)  211 Kuru v NSW (2008) 236 CLR 1  96 La Fontaine v The Queen (1976) 136 CLR 62  161 Lai v R [1990] WAR 151  236 LAL v The Queen [2011] VSCA 111  279 Lane v The Queen (2013) 241 A Crim R 321  176 Lau (1998) 105 A Crim R 167  237 Lee v The Queen (2013) 232 A Crim R 337, 397  236 Leff (1996) 86 A Crim R 212  240 Leichhardt Municipal Council v Hunter (2013) 83 NSWLR 637  20, 31, 32, 42 Likiardopoulos v The Queen (2012) 247 CLR 265  278, 279 Limbo v Little (1989) 45 A Crim R 61  323 Lindsay v The Queen (2015) 89 ALJR 518 281, 297–8 Long v DPP (NSW) [2008] NSWDC 194  213 Losurdo v DPP (1998) 103 A Crim R 189  73 Lowe v The Queen (1984) 154 CLR 606  334 Leung v The Queen (2001) 207 CLR 584  356 McAuliffe and McAuliffe v The Queen (1995) 183 CLR 108 245, 271, 278 McAvaney v Quigley (1992) 58 A Crim R 457  125 McCarthy and Ryan (1993) 71 A Crim R 395  266 McEwan v R  264, 278, 279 McIntrye v The Queen (2009) 198 A Crim R 549, 558  105, 126 M’Naghten Case (1843) 8 ER 718 at 722  308, 312, 313 M v R [2015] NSWSC 138  72 Mac v R [2014] NSWCCA 24  238 Macleod v The Queen (2003) 214 CLR 230  194, 211 MacPherson v Brown (1975) 12 SASR 184, 188  125 Magee v Delaney (2012) 39 VR 50  98 Mahadeo v R [1936] 2 All ER 813  280 Maingay v Charles [2009] TASSC 98  210 Makrynikos v R [2006] NSWCCA 170  322 Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62  179 Mann v R [2016] NSWCCA 10  279 Markarian v The Queen (2005) 215 ALR 213 329, 339, 340, 358 Markarian v The Queen (2005) 228 CLR 357  358 Markby v The Queen (1978) 140 CLR 108  278 Markovic v R [2010] VSCA 105  357 Marshall v Osmond [1983] QB 1034  71

Table of Cases

Masciantonio v The Queen (1995) 183 CLR 58  295, 297, 321 Matthews v Fountain [1982] VR 1045  212 Matthews v Towers [1922] VLR 476  237 May v The Queen (2012) 215 A Crim R 527  280 Medici v R (1989) 40 A Crim R 413  238 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 42 Meyers v The Queen (1997) 147 ALR 440  30, 40 Mill v R (1988) 166 CLR 59  334 Minigall v McCammon [1970] SASR 72  211 Mohan v R [1967] 2 All ER 58  278 Momcilovic v The Queen (2011) 245 CLR 1  214, 225–6, 236, 238, 240 Monis v The Queen (2013) 249 CLR 92  97 Moors v Burke (1919) 26 CLR 265  210, 217 Morgan v Coleman (1981) 27 SASR  334, 336 Morphitis v Salmon [1990] Crim LR 48  88 Mouroufas v R [2007] NSWCCA 58  239 Mraz v The Queen (1955) 93 CLR 493  162 Mulcahy v R (1868) LR 3 HL 306  254 Muldrock v The Queen (2011) 244 CLR 120  340, 348, 358, 360 Mulholland v Australian Electoral Commission (2004) 220 CLR 181  98 Murphy v Porter (1984) 12 A Crim R 38  212 Murray v The Queen (2002) 211 CLR 193  22, 178 National Australia Bank Ltd v Blacker (2000) 104 FCR 288  210 Neal v R (2011) 32 VR 454  125 Nelson v Cth (DPP) (2014) 294 FLR 347  276 Nguyen v R [2015] NSWCCA 78  237 Nguyen v The Queen [2015] VSCA 63  210 Nicholls v The Queen [2011] SASC 28  319 NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015  98 NSW Commissioner of Police v Folkes [2015] NSWSC 1887  98 Nydam v R [1977] VR 430  29, 166 O’Connor v Killian (1984) 15 A Crim R 353 245, 251 O’Flaherty v City of Sydney Council (2014) 221 FCR 382  98 Orban (Unreported, CCA (NSW), 5 July 1984)  238 Osborne v Goddard (1978) 21 ALR 189  322 Osborne v R [2015] NSWCCA 260  126 Osland v The Queen (1998) 197 CLR 316  245, 263, 320 Palazoff v R (1986) 43 SASR 99  299 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, 343  125

367

368

Table of Cases

Palmer v The Queen [1971] AC 814  319 Papadimitropoulos v The Queen (1957) 98 CLR 249  149 Parhizkar v R (2014) 88 NSWLR 647  98 Park v The Queen (2010) 202 A Crim R 113  276 Parker v The Queen (1963) 111 CLR 610  320, 321 Parsons v The Queen (1999) 195 CLR 619  210 Patel v The Queen (2012) 247 CLR 531  180 Paul v Collins Jnr [2003] WASCA 238  236 Paxton v R [2011] NSWCCA 242  356 Pearce v R (1998) 156 ALR 684  334 Pemble v The Queen (1971) 124 CLR 107  179 Penza and Di Maria v R [2013] NSWCCA 21  178 Pereira v DPP (1988) 82 ALR 217  27, 217 Peters v The Queen (1998) 192 CLR 493  277 Pfeifer (1996) 68 SASR 285  86 Pham v R [2009] NSWCCA 25  356 Pimental (1999) 110 A Crim R 30  322 Pinkstone v R (2004) 219 CLR 444  237, 278 Poidevin v Semaan (2013) 85 NSWLR 758  71 Police v Atherton [2010] SASC 87  98 Police v Baker (2015) 123 SASR 468  125 Police v Butler [2003] NSWLC 2  77, 84 Police v Cadd (1997) 69 SASR 150  356 Police v Forbes [2015] SASC 94  99 Police v Hailemariam (1999) 73 SASR 319  286 Police v Jessen (2011) 112 SASR 1  99 Police v Lloyd (1998) 72 SASR 271  284, 319 Police v McLeod [2011] SASC 160  98 Police v Rosser [2008] SASC 151  86–7 Police v Tee [2005] SASC 402  319 Pollock v The Queen (2010) 242 CLR 233  295 Porter v The Queen (1933) 55 CLR 182 281, 310, 311, 312 Postiglione v The Queen (1997) 189 CLR 295  335, 356 Potts v R [2012] NSWCCA 229  325 Pregelj and Wurramurra v Manison (1988) 31 A Crim R 383  85 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241  42 Presser v R [1958] VR 45  305, 323 Proudman v Dayman (1941) 67 CLR 536 20, 33 Public Prosecutions v Fabriczy (2010) 30 VR 632  253 R v Abboud [2005] NSWCCA 251  103 R v Abdollahi (No 12) (2013) 228 A Crim R 476  99 R v Abebe [2000] VSCA 148  321

Table of Cases

R v Abusafiah (1991) 24 NSWLR 531  322 R v Adams [2002] NSWCCA 448  324 R v AEM [2002] NSWCCA 58  356 R v ALH (2003) 6 VR 276  42 R v Aljaroudi; R v Abdullah  127 R v Amanatidis (2001) 125 A Crim R 89  236 R v Anderson (Unreported, CCA (NSW), 15 December 1983)  236 R v Annakin (1988) 17 NSWLR 202  179, 279 R v Asim (1997) 92 A Crim R 97  238 R v Aston (1987) 44 SASR 436, 439–40  278 R v BD (2001) 122 A Crim R 28  229, 240 R v Bainbridge [1960] 1 QB 129  268, 279 R v Baird (1985) 3 NSWLR 331  237 R v Barbouttis, Dale and Single (1995) 37 NSWLR 256 245, 257–8, 277 R v Barlow (1997) 188 CLR 1  280 R v Barnes [2005] 1 WLR 910  125 R v Barrass [2005] NSWCCA 131  151 R v Barri [2004] NSWCCA 221  356 R v Baruday [1984] VR 685  211 R v Basha (2003) 138 A Crim R 245  356 R v Becerra (1976) 62 Cr App R 212  279 R v Bedford (2007) 98 SASR 514  211 R v Belfon [1976] 3 All ER 46  126 R v Bellamy [1981] 2 NSWLR 727  212 R v Berlingo [2003] SASC 109  312, 324 R v Blackwell (2011) 81 NSWLR 119  10 R v Blyth [2001] NSWCCA 402  240 R v Blaue [1975] 3 All ER 446, 450  159 R v Bonollo [1981] VR 633  211 R v Bonora (1994) 35 NSWLR 74  139 R v Borkowski (2009) 195 A Crim R 1, 4  179 R v Bourke (1993) 67 A Crim R 518  236 R v Boyle [1954] 2 QB 292  213 R v Bridgland, ATS Winter [2013] SASC 203 R v Brougham (1986) 43 SASR 187  127, 213 R v Brow [1981] VR 783  211 R v Brown (1975) 10 SASR 139  150 R v Brown (1986) 21 A Crim R 289  322 R v Brown (1989) 17 NSWLR 472  73 R v Brown [1994] 1 AC 212 103, 107, 125 R v Brown and Morley [1968] SASR 467  322 R v Bui [2005] VSCA 300 R v Bugmy [2004] NSWCCA 258  358

369

370

Table of Cases

R v Bull (1974) 131 CLR 203  240 R v Burgess  286 R v Burton (2013) 237 A Crim R 238  152 R v Butcher (1985) 16 A Crim R 1, 13–17  178 R v Butcher [1986] VR 43, 50  213 R v Button and Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159  136, 151 R v Buttsworth [1983] 1 NSWLR 659  181 R v Byczko (No 1) (1977) 16 SASR 506  73 R v Byrne [1960] 2 QB 396  324 R v Cacu [2010] NSWDC 231  213 R v Cahill [1978] 2 NSWLR 453  277 R v Calis [2013] QCA 165  241 R v Campbell [1991] Crim LR 268  276 R v Campbell (2008) 73 NSWLR 272  240, 241 R v Carey (1990) 20 NSWLR 292  221, 237, 238 R v Carter [2003] NSWCCA 243  360 R v Carusi (1989) 17 NSWLR 516  238 R v Chai [2002] HCA 12  180 R v Chamberlain (No 2) (1984) 51 ALR 225  178 R v Chan (1992) 28 NSWLR 421  213 R v Chaouk (2013) 231 A Crim R 337  70 R v Cheshire [1991] 1 WLR 844  179 R v Chimirri [2010] VSCA 57  213 R v Chishimba  278, 279 R v Choi (Pong Su) (Ruling No 21)  266 R v Chow (1987) 11 NSWLR 561  238 R v Clark [1998] NSWSC 126  149 R v Clarke and Johnstone [1986] VR 643, 659  238 R v Clarkson and Carroll [1971] 1 WLR 1402  279 R v Clothier [2002] SASC 9  319 R v Clough (1992) 64 A Crim R 451  278 R v Cogan and Leak [1976] QB 217  278 R v Coleman (1990) 19 NSWLR 467, 475  125 R v Collingridge (1976) 16 SASR 117  252, 253 R v Collins [1973] 1 QB 100  213 R v Conley (1982) 30 SASR  226 R v Conlon (1993) 69 A Crim R 92  287 R v Cooke (1985) 16 A Crim R 304  321 R v Coomer (1989) 40 A Crim R 417, 422–23  179 R v Cotesworth (1704) 6 Mod 172  125 R v Cotterill (Unreported, CCA (NSW), 7 June 1993)  230 R v Coulter (1988) 164 CLR 350  126 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49  240

Table of Cases

R v Cox [2004] NSWCCA 204  277 R v Crabbe (1985) 156 CLR 464  27, 29, 161 R v Cramp (1999) 110 A Crim R 198  171, 179 R v Croft [1981] 1 NSWLR 126  321 R v Crowley [2004] NSWCCA 256  356 R v Crozier (Unreported, NSWCCA, 8 March 1996)  151 R v Cuthbert (1967) 86 WN 272  355 R v CWW (1993) 32 NSWLR 348  228, 237, 240 R v Darby (1982) 148 CLR 668  257 R v Dargin [2008] NSWSC 751  324 R v Darmadji [2008] NSWSC 1308  324 R v Davis (1998) 100 A Crim R 573  292, 320 R v Dawes [2004] NSWCCA 363  324 R v Dawood [2002] SASC 346  158 R v Dawson [1978] VR 536  300, 322 R v Dawson (1985) 81 Cr App R 150  180 R v Delk (1999) 46 NSWLR 340  204 R v Delon (1992) 29 NSWLR 29  218 R v Demirian [1989] VR 97  41, 278 R v Dennison (Unreported, NSWCCA, 3 March 1988)  323 R v Derbin [2000] NSWCCA 361  324 R v De Simoni (1981) 147 CLR 383  357 R v Dica [2004] QB 1257  125 R v Dickson (1865) 4 SCR (NSW) (L) 298  212 R v Dixon-Jenkins (1985) 14 A Crim R 372  32 R v Doan (2001) 3 VR 349  218 R v Doble [2007] VSCA 47  238 R v Donovan [1934] 2 KB 498, 509  125, 126 R v Downs (1985) 3 NSWLR 312  178 R v Dudley and Stephens (1884) 14 QBD 273  304, 305 R v Duffy [1949] 1 All ER 932  321 R v Dunn [2012] SASCFC 40  319 R v Durant [2007] NSWSC 428  324 R v Dykyj (1993) 29 NSWLR 672  212 R v Ebrahimi [2015] NSWSC 335  72 R v Edwards (1877) 13 Cox CC 384  210 R v Edwards (1996) 90 A Crim R 510  357 R v El-Awar [2012] SASCFC 117  127 R v El Azzi [2004] NSWCCA 455  277 R v Elliott and Hitchins (1983) 9 A Crim R 238  179 R v Emery (1975) 11 SASR 169  213 R v Emmet (The Times, 15 October 1999 (CA))  125 R v Evans (1987) 30 A Crim R 262  150

371

372

Table of Cases

R v Evans (1987) 48 SASR 35  249 R v Evans and Gardiner (No 2) [1976] VR 523  178 R v F (1956) 74 WN (NSW) 211  181 R v Fajka [2004] NSWCCA 166  357 R v Falconer (1990) 171 CLR 30  20, 22, 281, 315, 323, 325 R v Falls [2004] NSWCCA 335  356 R v Farrar (1983) 78 FLR 10  126 R v Farrar (Unreported, Court of Criminal Appeal (NSW) Priestley JA, Wood and ­Finlay JJ, 6 May 1991)  179 R v Farrell [2003] NSWSC 300  324 R v Feely [1973] 1 QB 530  193 R v Filippetti (1978) 13 A Crim R 335 214, 219 R v Fisher (Unreported, SC (NSW), 17 February 1989)  238 R v Fisher [2002] NSWCCA 188  125 R v Flannery [1969] VR 31  150 R v Formosa [2005] NSWCCA 363  356 R v Forrest [2013] NSWSC 527  323 R v Foster (1995) 78 A Crim R 517  213 R v Franklin (2001) 119 A Crim R 223  264, 279 R v Frazer (2002) 128 A Crim R 89  238 R v Fuge (2001) 123 A Crim R 310  196, 197 R v Fyffe [2005] NSWCCA 3  278 R v Gagalowicz [2005] NSWCCA 452  324 R v Gardner (1989) 42 A Crim R 279  321 R v Garlick (No 2) (2007) 15 VR 388  239 R v Geddes (1936) 36 SR(NSW) 554  355 R v Gemmill [2004] VSCA 72  323 R v Georgatsoulis (1994) 62 SASR 351  321 R v Ghosh [1982] 1 QB 1053  193, 195, 211, 212 R v Gilks [1972] 3 All ER 280  210 R v Giorgi and Romeo (1981) 7 A Crim R 305  239 R v Girard [2004] NSWCCA 170  357 R v Gnosil (1824) 171 ER 1206  213 R v Goldman (No 5) [2004] VSC 292  322 R v Gorman (2002) 137 A Crim R 326  356 R v Gosling [2002] NSWCCA 351  324 R v Griffin (1869) 11 Cox CC 142  126 R v Hain (1966) 85 WN (Pt 1) (NSW) 7  174, 181 R v Hallett [1969] SASR 141  178 R v Hamilton (1993) 66 A Crim R 575  117 R v Harkin (1989) 38 A Crim R 296  151 R v Hasan [2005] 4 All ER 685, 694  322 R v Hawi (No 18) [2011] NSWSC 1664  99

Table of Cases

R v Heavey (1965) 84 WN (Pt 1) (NSW) 248  126 R v Helmling, Unreported, Court of Criminal Appeal (NSW), Hunt CJ at CL, Allen J, ­Loveday AJ, 11 November 1993)  181 R v Hemsley (1988) 36 A Crim R 334  150 R v Hendy (2008) 191 A Crim R 81  319 R v Hennessy [1989] 2 All ER 9  324, 325 R v Hewitt [1997] 1 VR 301  278 R v Higgs (2011) 111 SASR 42  150 R v Hill (2011) 110 SASR 588  357 R v Hinz (1986) 24 A Crim R 185, 188  324 R v Ho and Szeto (1989) 39 A Crim R 145  212 R v Hoang (2007) 16 VR 369  70 R v Holman [1982] VR 471  237 R v Holzer [1968] VR 481  179 R v Hopton (Unreported, Court of Criminal Appeal (NSW), Spigelman CJ, Abadee and Ireland JJ, 8 October 1998)  174, 181 R v Hore  278 R v Houlton (2000) 49 NSWLR 383  356, 357, 358 R v House [2005] NSWCCA 88  357 R v Howe [1987] AC 417  322 R v Hudson [1971] 2 QB 202  322 R v Hughes [2015] VSC 312  126 R v Hunter (1989) 44 A Crim R 93  126, 179 R v Hurley and Murray [1967] VR 526  280, 299, 322 R v Huston (2011) 255 FLR 143, 178–9  278 R v Hutty [1953] VLR 338  178 R v Hyams (1836) 173 ER 196  213 R v IAS (2004) 89 SASR 159  70 R v Iby [2005] NSWCCA 178  178 R v Irwin (2006) 94 SASR 480  253 R v Jasper (2003) 139 A Crim R 329  224 R v Jenner (2000) 110 A Crim R 512  280 R v Johnson [2005] NSWCCA 186  357 R v Johnson [2013] NSWDC 40  324 R v Jones (Unreported, NSWSC, Sperling J, 13 May 1995)  324 R v Jones (1990) 91 Cr App R 351 245, 250, 276 R v Jones [2000] NSWCCA 186  277 R v Jordan (1956) 40 Cr App R 152  179 R v Jurisic (1998) 45 NSWLR 209  358 R v Justelius [1973] 1 NSWLR 471  211 R v Kady (Unreported, CCA (NSW), 18 June 1993)  237 R v Kageregere [2011] SASC 154  41, 179 R v Kanaan (2005) 64 NSWLR 527, 550  178

373

374

Table of Cases

R v Karounas (1995) 63 SASR 451  70 R v Katarzynski [2002] NSWSC 613  284, 287 R v Keenan (2009) 236 CLR 397  280 R v Kennedy (1997) 94 A Crim R 341  70 R v Kenney [1983] 2 VR 470  321 R v Khazaal (2012) 246 CLR 601  43 R v Kitchener (1993) 29 NSWLR 696  29, 41, 134 R v Konzani [2005] 2 Cr App R 198  125 R v Kosowicz [2005] NSWSC 234  324 R v Kovacs [1974] 1 All ER 1236  212 R v Kristo (1989) 39 A Crim R 86  252 R v Kroon (1990) 52 A Crim R 15  181 R v Kumar (2002) 5 VR 193  320 R v Kurtic (1996) 85 A Crim R 57  319 R v Kuster (2008) 21 VR 407  320 R v Lam (No 20) (2005) 159 A Crim R 448  279 R v Lam (2008) 185 A Crim R 453  266 R v Lambie [1981] 2 All ER 776  212 R v Langham (1984) 36 SASR 48  197 R v Larkin [1943] 1 All ER 217  179 R v Latimer (1886) 17 QBD 359  41 R v Lavender (2005) 222 CLR 67 153, 166–7, 180 R v Lavery (1978) 19 SASR 515 R v Lawrence [1980] 1 NSWLR 122  299, 322 R v Lawrence [1997] 1 VR 459  211 R v Lawson (No 3) (2012) 226 A Crim R 138  179 R v Le (No 3) (2010) 10 DCLR (NSW) 184  322 R v Le Brun [1991] 4 All ER 673  41 R v Lee (1994) 76 A Crim R 271  245, 256 R v Lees [1999] NSWCCA 301  292, 320, 321 R v Leonboyer [2001] VSCA 149  325 R v Leung (1999) 48 NSWLR 340  356 R v Lin (No 2) [2014] NSWSC 1710  179 R v Lindsay (2014) 119 SASR 320  321 R v LK  254, 258, 277 R v Lo and Ouyang [2004] NSWCCA 382  357 R v Lonie and Groom [1999] NSWCCA 319  238 R v Loughnan [1981] VR 443, 448  304, 323 R v Love (1989) 17 NSWLR 608  212 R v Lynch [2002] NSWSC 1140  321 R v McBride (1965) 115 CLR 44  181 R v McCarthy [2015] SASCFC 177  179 R v McConnell [1977] 1 NSWLR 714  322

Table of Cases

R v McConnell and Ors [1977] 1 NSWLR 714  41 R v McCulloch (2009) 21 VR 340  237 R v McEwan (1979) 12 NSWLR 926  132 R v McInnes (1971) 55 Cr App R 551  319 R v McIntosh [1999] VSC 358  125 R v McKay (Unreported, NSWCCA, Gleeson CJ, Carruthers and Finlay JJ, 10 ­September 1992)  128 R v MacDonald [1983] 1 NSWLR 729  210 R v MacLeod [2013] NSWCCA 108  358 R v Machin (No 2) (1997) 69 SASR 403  321 R v Mackie [1973] Crim LR 54  126 R v Maes [1975] VR 541  150 R v Mai and Tran (1992) 26 NSWLR 371  252, 276 R v Mailes [2001] NSWCCA 155  323 R v Maio [1989] VR 281  236 R v Majdalawi [2000] NSWCCA 240  325 R v Majewski [1977] AC 443  24 R v MAK (2006) 167 A Crim R 159  356 R v Malcharek; R v Steel [1981] 2 All ER 422  179 R v Manh Viet Do [2001] NSWCCA 19 153, 167–8 R v Manju Sam (No 17) [2009] NSWSC 803  180 R v Manson (Unreported, NSWCCA, 17 February 1993)  151 R v Maric [2009] NSWSC 346  324 R v Markou (2012) 221 A Crim R 48  127 R v Martin [1981] 2 NSWLR 640  357 R v Masters, Richards and Wunderlich (1992) 26 NSWLR 450  277 R v Mattar [2012] NSWCCA 98  304 R v Matthews [1950] 1 All ER 137  212 R v Miles (1842) 6 Jur 243  126 R v Millar (No 2) (2013) 227 A Crim R 556, 567–8  212 R v Miller (1951) 58 ALR 749  179 R v Miria [2009] NSWCCA 68  355 R v Mitchell [1983] 1 QB 741 20, 27, 41 R v Mobilio [1991] 1 VR 339  149 R v Moffatt (2000) 112 A Crim R 201  178, 179 R v Moffa (1977) 138 CLR 601  292, 320 R v Mofitt (1990) 20 NSWLR 114  359 R v Mohan [1976] QB 1  276 R v Momcilovic (2010) 25 VR 436  238 R v Moore [2015] NSWCCA 316  180 R v Morgan [1976] AC 182  24 R v Morris (1840) 173 ER 864  210 R v Morton (1986) 42 SASR 571  237

375

376

Table of Cases

R v Morton (Unreported, ACTSC, Crispin J, 24 February 1998)  149 R v Munro (1981) 4 A Crim R 67  162 R v Nguyen (1995) 36 NSWLR 397  319 R v Nguyen [1997] 1 VR 551  213 R v Nguyen (Unreported, NSWCCA, Hunt CJ, Ireland J, Bell AJ, 20 February 1997)  213 R v Nguyen (2005) 12 VR 299  237, 240 R v Nguyen [2006] NSWCCA 369  358 R v Nguyen (2010) 108 SASR 66  238 R v Nguyen [2012] VSC 579  179 R v Nolan (2012) 83 NSWLR 534  276 R v O’Brien (1974) 59 Cr App R 222  277 R v O’Brien [2003] NSWCCA 121  322 R v O’Connor (1980) 146 CLR 64 20, 25 R v Olbrich (1999) 199 CLR 270  357 R v Ollis (1986) 21 A Crim R 256  356 R v O’Neill [1979] 2 NSWLR 582  357 R v Onuorah (2009) NSWLR 1  276, 277 R v Orton [1922] VLR 469  255 R v Pagett (1983) 76 Cr App R 279 153, 159 R v Palazoff (1986) 43 SASR 99  322 R v Palu [2002] NSWCCA 381  358 R v Paris [2001] NSWCCA 83  358 R v Parisi (2014) 119 SASR 277  237, 239, 240 R v Payne (2004) 89 SASR 49  356 R v Pearse (2011) 58 MVR 435  181 R v Peterson (No 4) [2014] NSWSC 1056  324 R v Petrie [1961] 1 WLR 358  126 R v Phan (2001) 53 NSWLR 480  266 R v Phomaranuphong [2001] NSWSC 1157  324 R v Piccin (No 2) [2001] NSWCCA 323  358 R v Pierce [1996] 2 VR 215  237 R v PJE (Unreported, NSWCCA, 9 October 1995)  152 R v Place (2002) 81 SASR 395  356 R v Popa (1991) 53 A Crim R 102  237 R v Portelli [2004] VSCA 178  285 R v Porter (1933) 55 CLR 182, 184  323, 324 R v Potisk [1973] SASR 389 20, 31 R v Pratt [2009] NSWSC 1108  324 R v Presley (2015) 122 SASR 476  179 R v PRFN [2000] NSWCCA 230  285, 324 R v Pullman (1991) 58 A Crim R 222  171, 179 R v Quartly (1986) 11 NSWLR 332  320 R v R (1981) 28 SASR 321  281, 289, 290, 291, 320, 321

Table of Cases

R v R2 (1992) 19 NSWLR 513  239 R v Raad [1983] 3 NSWLR 344  212 R v Radford (1985) 42 SASR 266  323, 325 R v Radic (2001) 122 A Crim R 70  73 R v Radich [1954] 1 NZLR 86, 87  355 R v Randylle (2006) 95 SASR 574, 583  240 R v Reeves (1992) 29 NSWLR 109  42 R v Rhodes (1984) 14 A Crim R 124  160 R v Rich (1997) 68 SASR 390  279 R v Rich [1998] 4 VR 44  70 R v Riley (1853) Dears 149; 169 ER 674  192 R v Rivkin [2004] NSWCCA 7  323 R v RK (2010) 241 CLR 177  254, 258, 277 R v Roberts (2011) 111 SASR 100, 117  318 R v Robinson [1915] 2 KB 342  276 R v Roffel [1985] VR 511  211 R v Rogers (1996) 86 A Crim R 542  304, 322 R v Rogerson (1992) 174 CLR 268  254, 271, 277 R v Rook [1993] 2 All ER 955  279 R v Ruiz-Avila (2003) 142 A Crim R 459